Ex  Htbrifl 


SEYMOUR    DURST 


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HTl'YVKSAXT    FISH, 


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ev  ^  /tit    <?  o^t.  0-jlmS*s  *  <  e  >  ? 


OPINION 


hi 


Sidney  Webster,  Esq. 

nil 

Law  of    XIaw'riack 

Prevailing  ix.vhk  CotIony 

OF   NVav  York   ix 

17713. 


OPINION 


Sidney  Wbbstkr,  Esq., 


Marriage  Law  of  the  Colony  of  New  York, 

I  IT       1  V  V  2  . 


The  following  specific  questions  are  submitted  to  me  for 
my  opinion : 

1.  Whether  the  law  of  marriage  in  New  York,  in  1772, 
was  contained  in  Dongan's  law  of  1684,  supplemented, 
where  defective,  by  the  older  laws  of  the  Duke  of  York 
and  of  the  Dutch  i 

2.  Whether,  in  1772,  a  non-observance  of  the  require- 
ments of  Dongan's  Act  entailed  a  nullity  of  the  ceremony 
of  marriage  '. 

3.  Whether  the  statement  in  the  certificate  of  the  Rev. 
Dr.  Ogilvie  (assuming  the  certificate  to  be  evidence),  that 
the  marriage  was  performed  by  him  "according to  the  rites 
"  and  ceremonies  of  the  Church  of  England,  as  by  lave 
"  established,"  proves  that  the  alleged  marriage  was  pre- 
ceded by  the  statutory  requirements  of  banns  or  license? 

I  will  proceed  to  answer  these  inquiries  in  the  order  in 
which  they  have  been  propounded. 


First  Question. 

From  1609  to  1772  there  was  not  an  opening,  or  an  oppor- 
tunity, through  which  any  English  common  law,  as  regu- 
lating marriage,  could  and  did  enter  and  become  established 
in  the  Province  of  New  Netherland  or  the  Colony  of  New 
York.  Englishmen  settling  in  a  newly  discovered  region 
occupied  by  the  aboriginal  races,  or  not  peopled  by  any 
human  beings,  may  bring  with  them  and  establish  so  much 
of  English  law.  which  is  the  birthright  of  every  subject  of 
the  Crown,  as  they  shall  decide  is  applicable  to  their  cir- 
cumstances ;  but  when  Henry  Hudson  arrived  in  1609  in 
what  is  now  the  Bay  of  New  York,  there  were  not,  and 
never  had  been.  English  settlers  in  all  that  territory  known 
in  1772  as  the  Colony  of  New  York.  Certainly  from  that 
date  down  to  1664  the  political  and  municipal  government, 
de  facto,  of  all  the  region,  had  been  continuously  Dutch 
and  not  English.  It  is  also  my  opinion  that  the  Govern- 
ment of  the  Province  of  New  Netherland  and  the  laws  of 
marriage  prevailing  therein  were,  down  to  1664,  dejw 
well  as  <h:  facto*  Dutch. 

Whatever  may  be  said  of  the  other  portions  of  the  Atlan- 
tic seaboard  south  of  Delaware  Bay.  or  38°  of  latitude. 
and  north  of  41  of  latitude.  I  assume  it  to  be  an  historical 
fact  that  all  the  region  within  those  lines  was.  first  and 
foremost  among  Europeans,  settled,  planted,  occupied  and 
used  by  the  Dutch,  to  the  exclusion  of  any  other  Europeans 
forming  an  organized  political  body.  Who,  among  Euro- 
peans, first  discovered  that  seaboard  and  region  is  a  different 
question.  I  assume  it.  however,  to  be  an  unquestioned 
historical  fact  that  no  evidence  has  yet  been  disclosed  show- 
ing conclusively  that  either  of  the  Cabots  actually  saw  that 
seaboard  or  region  while  cruising  under  the  patent  from 
Henry  VII.  issued  in  1496.  That  one  or  the  other  or  both 
of  the  Cabots  first  discovered  and  touched  the  main  land  of 
the  Western  Continent  at  or  near  Labrador  in  1497,  and 
first  recognized  and  appreciated  the  tremendous  fact  of  the 
existence  of  a  new  continent,  may  not  now  be  denied;  but 


8 


(lie  researches  of  nearly  four  hundred  years  since  that  date 
have  utterly  tailed,  1  think,  to  produce  satisfactory  evidence 

of  a  glimpse  of  land  by  either  Cabot,  south  (if  the  line  of  46 
of  latitude,    and    it    would   he   unreasonable   to  stretch    the 

doctrine  of  contiguity  or  vicinity,  as  governing  the  law  of 

title  by  discovery,  so  as  to  make  it  include  the  [aland  of 
Manhattan  and  Bay  of  New  York  situated  so  many  hun- 
dred miles  away.  That  Verazzano,  cruising  under  a  patent 
issued  by  Francis  I.,  did  touch  the  American  coast  at  a 
point  near  the  34th  of  latitude,  and,  thence  sailing  north- 
ward, did  enter  the  harbor  of  New  York  in  1524,  ascend  the 
Hudson  River  a  short  distance,  and  afterwards  enter  Xarra- 
gansetl  Bay,  situated  further  northward  on  the  coast,  appears 
to  he  well  established.  The  mouth  of  the  Hudson  River 
was  also  visited  during  the  same  year  and  partially  explored 
by  Gomez,  cruising  under  a  Spanish  patent.  But  neither 
of  those  two  discoverers,  or  their  countrymen,  or  France  or 
Spain,  made  settlements,  or  asserted  title  or  jurisdiction  in 
or  over  any  part  of  the  region  afterwards  covered  by  the 
Province  of  New  Netherland,  or  by  the  Colony  of  New 
York.  The  result  of  modern  geographical  and  historical 
exploration  seems  to  clearly  show  that,  even  down  to  1620, 
the  Dutch  were  the  only  Europeans  who  had  visited  and 
explored  the  seaboard  of  what  is  now  the  States  of  Connec- 
ticut, New  York  (including  Long  Island  Sound)  and  New 
Jersey.  To  the  north  of  Cape  Cod  and.  to  the  south  of 
Delaware  Bay,  the  English  had  been  before  those  dates, 
and  had  fairly  gained  a  title  by  discovery  and  occupation, 
and  so  had  the  French  further  north  in  that  region  gener- 
ally known  as  Canada. 

"  We  derive  our  right  in  America,"  says  Edmund  Burke 
in  his  account  of  the  European  settlements  in  America, 
"  from  the  discovery  of  Sebastian  Cabot,  who  first  made  the 
"  Northern  Continent  in  1497.  The  fact  is  sufficiently  cer- 
"  tain  to  establish  a  right  to  our  settlements  in  North 
"  America."  Possibly  the  researches  of  an  hundred  years, 
since  that  was  written,  have  shown  that  the  name  of  John 
Cabot  should  be  substituted  for  that  of  Sebastian,  but  other- 


wise  the  statement  of  Mr.  Burke  respecting  English  claims 
may  now  be  taken  as  substantially  correct. 

Chief  Justice  Marshall,  in  announcing  the  decision  of  the 
Supreme  Court  of  the  United  States  in  the  year  1823,  in  the 
case  of  Johnson  and  Graham? '  s  lessee  vs.  William  Mcintosh 
(8  Wheaton's  Reports,  543)  said  that,  "  On  the  discovery 
"of  this  immense  continent  the  great  nations  of  Europe 
'•were  eager  to  appropriate  to  themselves  as  much  of  it  as 
"they  could  acquire  *  *  *  but  as  they  were  all  in  pursuit 
"  of  nearly  the  same  object,  it  was  necessary,  in  order  to 
"avoid  conflicting  settlements  and  consequent  war  with 
"each  other,  to  establish  a  principle  which  all  should 
"acknowledge  as  the  law  by  which  the  right  of  acquisition 
"  which  they  all  asserted  should  be  regulated  as  between 
"  themselves.  That  principle  was  that  discovery  gave  title 
'•  to  the  Government  by  whose  subjects  or  by  whose 
"authority  it  was  made,  against  all  other  European  Gov- 
ernments, which  title  might  be  consummated  by  posses- 
sion." In  that  sense,  Mr.  Burke  was  correct  when  he 
declared  rhat  England  derived  her  rights  in  America  from 
the  discovery  of  Cabot,  since  first  discovery  by  an  individual 
gives  an  inchoate  title  to  possession  and  political  dominion 
by  the  Government  of  which  the  discoverer  is  a  subject, 
or  a  citizen,  provided  the  discoverer  holds  the  com- 
mission of  his  Government  at  the  time  of  the  discovery,  or 
his  discovery  be  afterward  adopted  by  his  Government. 
The  fact  of  discovery  may  be  the  foundation  of  the  right  to 
occupy.  Lord  Stowell  in  The  Fama  (5  Rob.  Adm.  Rep., 
114)  says:  "  Even  in  newly  discovered  countries,  where  a 
"  title  is  meant  to  be  established  for  the  iirst  time,  some  act 
"of  possession  is  usually  done,  and  proclaimed,  as  a  noti- 
fication of  the  fact."  This  right  of  an  individual,  or  a 
Government,  to  appropriate  the  object  of  his  or  its  discov- 
ery, rests  upon  the  presumption  that  it  has  no  owner,  which 
presumption  in  the  case  of  the  first  comer  is  a  accessary 
presumption  and  consequently  a  presumption  of  law.  A 
clear  statement  of  the  limitations  and  conditions  of  title  by 
discovery  and  occupation  was  first  made  by  Wolff  in  his 


Institutions  du  Droit  de  la  Natun  et  desGens,  §213,  pub- 
lished in  L749,  and  by  Ya:t<>l  in  his  Droit  des  Gens,  h.  I.. 
§208,  published  in  L758.    The  Last-named  author  (in  trans 
lalion)  says  : 

"The  law  iif  nation-;  will  therefore  nut  acknowledge  the  property  and  so v- 
"  ereiguty  of  a  nation  over  any  uninhabited  countries  except  those  of  which  it 

"  has  really  taken  possession,  in  which  it  has  formed  settlements,  or  of  which 
"it  has  actual  use.  In  effect  when  navigators  have  nut  with  deserl  countries, 
"  in  which  those  of  other  nations  had  in  their  transient  visits  erected  some 
"  monuments  to  show  their  having  taken  some  possession  or  them,  they  have 

••  paid  as  little  regard  to  that  empty  ceremony  as  to  the  regulations  of  the  Popes 
"who   divided    a  great  part  of  the  world   between  the  Crowns  of  Castile  and 

■•  Portugal." 

Martens  wrote  in  1789  to  the  same  effect  in  his  Precis  du 
Droit  des  Gens,  §  37;  and  so  did  Kluber  in  1819  in  his  Droit 
des  Gens,  $  L26.  The  principle  and  rule  to  be  deduced, 
respecting  title  to  unoccupied  regions,  or  those  in  the  pos- 
session of  tlie  aboriginal  inhabitants,  from  the  writings  of 
the  accepted  teachers  of  public  law,  are  that  acquisition  and 
title  may  be  original  and  derivative  ;  that  original  title  in- 
cludes discovery,  rise,  and  settlement,  which  are  ingredi- 
ents of  occupation,  and  will  constitute  a  valid  title,  but  that 
derivative  title  comes  of  conquest,  treaty  and  transfer.  My 
opinion  is  that  the  English  title  to  sovereignty  and  domin- 
ion in  the  Province  of  New  Netherlands  and  the  Colony  of 
New  York  was  not  original  in  this  sense,  but  was  derivative 
from  conquest. 

The  principles  applicable  to  snch  questions  were  elabo- 
rately discussed  very  soon  after  the  establishment  of  the 
( Government  of  the  United  States  of  America  under  its  exist- 
ing Constitution.  The  occasion  was  the  negotiations  at 
Madrid,  and  in  ^Vashington,  between  the  American  Com- 
missioners appointed  on  the  part  of  the  United  States,  and 
the  Spanish  Minister  of  Foreign  Affairs,  on  the  subject  of 
the  western  boundary  of  Louisiana.  The  treaty  between 
the  United  States  of  America  and  the  French  Republic, 
concluded  April  20,  1803,  by  which  the  French  Repub- 
lic ceded  to  the  United  States  specifies  ''The  colony 
"  or  province   of   Louisiana    with    the   same  extent  that 


6 


"it  now  has  in  the  hands  of  Spain  and  that  it  had 
"  when  France  possessed  it."  The  controversy  was 
over  the  boundaries  of  the  region  to  which  France  bad 
acquired  a  title  originally  by  first  discovery  and  occupa- 
tion, which  France  had  ceded  to  Spain,  and  Spain  had 
retro-ceded  to  France,  and  France  had  ceded  to  the  United 
States  The  Commissioners  appointed  by  the  United  States 
to  conduct  the  negotiations  with  Spain  in  1803,  were  Mr. 
Monroe,  afterward  President  of  the  United  States,  and  Mr. 
Charles  Pinckney,  a  lawyer  of  conspicuous  learning  and 
renown.  A  complete  copy  of  the  text  of  the  early  corre- 
spondence which  passed  between  the  two  Governments  is 
to  be  found  in  American  rtlt/fe  Papers,  Foreign  Relations, 
and  Volume  2.  On  pages  G63— 4  of  this  volume,  those  Com- 
missioners are  reported  as  having  used  this  language  : 

"  The  facts  which  are  material  in  the  ease  arc  such  as  relate  to  the  diseov- 
"  cry  and  possession  of  the  territory  referred  to  by  the  subjects  and  under  the 
"  authority  of  each  nation.  The  principles  are  those  which  have  been  recog- 
"  aized  by  European  powers  in  similar  transactions,  and  which  of  course  ought 
"  to  govern  in  the  present  one.    *    *    *    The  principles  which  are  applica- 

"  ble  to  the  ca^c  arc  such  as  are  dictated  by  reason  and  have  been  adopted  in 
"  practice  by  European  powers  in  the  discoveries  and  acquisitions  which  they 
"  respectively  made  in  the  New  World.  They  are  principles  intelligible  and 
"  at  the  same  time  founded  in  strict  justice.  The  Bret  of  these  is  that  when 
"  any  European  nation  lakes  possession  of  an  extensive  sea  coast,  that  posses- 
"  sion  is  understood  as  extending  into  the  interior  country  to  the  source  of  the 
"  rivers  emptying  within  that  coast,  to  all  their  branches  and  the  country  they 
"  cover,  and  to  give  it  a  right  iu  exclusion  of  all  other  nations  to  the  same. 
"  It  is  evident  that  some  rule  o]-  principle  must  govern  the  rights  of  European 
"  powers  in  regard  to  each  other  in  all  such  cases  ;  and  it  is  certain  that  none 
"  can  lie  adopted  in  those  to  which  it  applies  more  reasonable  or  just  than  the 
"  present  ones.  Many  weighty  considerations  show  the  propriety  of  it. 
"  Nature  seems  to  Lave  destined  a  range  of  territory  so  described  for  the  same 
■•  society,  to  have  connected  its  several  parts  together  by  the  ties  of  a  common 
"  interest  and  to  have  detached  them  from  others.  If  this  principle  is 
"  departed  from  it  must  be  by  attaching  to  such  discovery  and  possession  a 
"  more  enlarged  or  contracted  scope  of  acquisition  ;  but  a  slight  attention  to 
"  the  subject  will  demonstrate  the  absurdity  of  either.  The  latter  would  be 
"  to  restrict  the  tights  of  a  European  power  Who  discovered  and  took  posses 
"  sion  of  a  new  country,  to  the  spot  on  which  its  troops  or  settlement  rested  ; 
"  a  doctrine  which  has  been  totally  disclaimed  by  all  the  powers  who  made 
"  discovery  and  acquired  possessions  in  America.    The  other  extreme  would 

"be   equally    improper;    that    is   that    the    nation    who    made   such    discovery 


should  Id  all  cases  be  entitled  to  the  whole  of  the  territory  bo  discovered. 

Ill  the  rase  of  all   Island,   whose  e\l<  nl   was  ki.ii.   wliirli    mighl   I"'  BOOU  sailed 

around  and  preserved  by  a  few  forts,  ii  may  apply  with  justice  ;  bul  in  thai 
of  a  continenl  ii  would  be  absolutely  absurd.  Accordingly  we  Ond  that  iliis 
opposite  extreme  has  been  equally  disclaimed  and  disavowed  bj  the  doctrine 
and  practice  of  European  nations.  The  great  continent  of  America,  North 
and  South,  was  never  claimed  by  any  one  European  nation,  Dor  was  either 
portion  of  it.    Their  pretensions  have  been  al  way b  bounded  by  more  mod 

crate  and    rational    principles.       The   one   laid   down    has   obtained    general 

assent.     This  principle  was  completely  established  in  the  controversy  which 

produced   the  war  of   1T.V>.      Great    Britain  contended  that    she  had  a  light, 

founded  in  the  discovery  and  possession  of  such  territory,  to  define  its  boun- 
daries by  given  latitudes  in  grants  to  individuals,  retaining  the  sovereignty 
to  herself  from  sea  to  sea.  This  pretension  on  her  part  was  opposed  by 
France  and  Spain,  and  was  finally  abandoned  by  Great  Britain  in  the  treatj 
of  1763  which  established  the  Mississippi  as  the  western  boundary  of  her 

possessions.      It  was  opposed    by    France   and    Spain    on   the   principle  here 

insisted  on,  which,  of  course,  gives  us  the  highest  possible  sanction  in  the 
present  case. 

"  The  second  is  that  whenever  one  European  nation  makes  a  discovery  and 
takes  possession  of  any  portion  of  that  continent  and  another  afterwards 
docs  the  same  at  some  distance  from  it  where  the  boundary  bet  ween  them 
is  not  determined  by  the  principle  above-mentioned,  the  middle  distance 
becomes  such  of  course.  The  justice  and  propriety  of  this  rule  are  too 
obvious  to  require  illustration. 

"  A  third  rule  is  that  whenever  any  European  nation  lias  thus  acquired  a 
right  to  any  portion  of  territory  on  that  continent,  that  right  can  never  be 
diminished  or  affected  by  any  other  power  by  virtue  of  purchases  made  by 
grant  or  conquests  of  the  natives  within  the  limits  thereof.  It  is  believed 
that  this  principle  has  been  admitted  and  acted  on  invariably  since  the  dis- 
covery of  America  in  respect  of  their  possessions  there  by  all  the  European 
powers.  It  is  particularly  illustrated  by  the  stipulations  in  their  most  im- 
portant treaties  concerning  those  possessions  and  the  practice  under  them, 
towit,  the  treaty  of  Utrecht  in  1718  and  that  of  Paris  in  1758.  *  *  *  These 
facts  prove  incontestably  that  that  principle  is  not  only  just  in  itself  but 
that  it  has  been  invariably  observed  by  all  the  powers  holding  possessions 
in  America,  in  all  questions  to  which  it  applies  relative  to  those  possessions." 

It  will  be  observed  that  actual  possession  is,  in  the  fore- 
going declarations  of  principles,  made  an  essential  element 
of  a  valid  and  complete  title. 

These  principles  were  announced  in  1805.  Fourteen 
years  afterwards  they  were  re-affirmed,  as  American  law, 
by  Mr.  John  Quincy  Adams,  then  Secretary  of  State  of  the 
United  Suites,  who  afterwards  became  President  of  the 
United  States.     In  a  diplomatic  correspondence  in  1818 


8 


between  Mr.  Adams  and  the  Spanish  Minister  in  Washing- 
ton, the  former,  on  March  12th,  1818,  summarized  the 
principles  which  had  been  announced  to  Spain  by  Mr. 
Monroe  and  Mr.  Pinekney,  and  declared  that  they  were 
"sanctioned  alike  by  immutable  justice  and  the  general 
"  practice  of  the  Euiopean  nations  which  have  formed  set- 
"  tlements  and  held  possessions  in  this  hemisphere/'  (See 
American  State  Papers,  Foreign  Kelations.  Vol.  4,  p. 
407.) 

In  1826,  an  international  conference  was  held  at  London 

between  the  British  and  the  American  Commissioners  to 

consider  conflicting  territorial  claims  in  Oregon.     On  that 

occasion,  the   British   Commissioners,    Messrs.   Huskisson 

and  Addington,  maintained  these  views  :  "Upon  the  ques- 

'  tion  how  far  prior  discovery  constitutes  a  legal  claim  of 

'  sovereignty,  the  Law  of  Nations  is  somewhat  vague  and 

'  undefined.   It  is,  however,  admitted  by  the  most  approved 

•  writers  that  a  mere  accidental  discovery,  unattended  by 
'  exploration,  by  formally  taking  possession  in  the  name 
'  of  the  discoverer's  sovereign,  by  occupation  and  settle- 
'  ment,  more  or  less  permanent,  by  purchase  of  the  terri- 
'  tory  on  receiving  the  sovereignty  from  the  nation,  con- 

•  stitutes  the  lowest  degree  of  title  ;  and  that  it  is  only  in 
'  proportion  as  the  first  discovery  is  followed  by  any  or  all 
'  of  these  acts  that  such   title  is  strengthened  and  con- 

•  firmed." 

That  rule  and  principle,  when  applied  to  the  Province  of 
New  Netherlands,  defeats  any  English  claim  of  title  by 
original  acquisition. 

The  American  Commissioner  and  Plenipotentiary  on  this 
occasion  was  Mr.  Albert  Gallatin,  an  eminent  and  illustrious 
American  publicist  and  statesman.  Mr.  Gallatin  formu- 
lated the  American  contention  in  this  language  : 

"  It  may  be  admitted  as  an  abstract  principle  that   in  the  origin  of  society 

"  fir>t  occupancy  and  cultivation  were  the  foundation  of  the  rights  of  private 
••  property  and  of  national  sovereignty.  Bui  that  principle,  on  which  princi- 
"  pally  if  not  exclusively  it  would  seem  that  the  British  Government  wishes  to 
"  rely,  could  be  permitted  in  either  case  to  operate  alone  and  without  restric- 
"  tion  so  lorn:  only  as  the  extent  of  vacant  territory  was  such  in  proportion  to 


"  the  population  thai  then  was  ample  r 0  for  every  individual  and  for  even 

"  di8tinct  Community  or  nation  without  danger  of  collision  with  others.  As 
"  in  every  society  it  had  soon  become  necessary  to  make  laws  regulating  the 
"  manner  in  which  its  members  should  lie  permitted  to  occupy  and  to  acquire 
"vacant  land  within  its  acknowledged  boundaries,  so  also  nations  found  it 
"  indispensable  for  the  preservation  of  peace  and  for  the  exercise  of  just  juris- 
"  diction  to  adopt,  particularly  after  the  discovery  of  America,  b i  general 

••  rules  which  should   determine  the    important    previous  question  who  had    a 

"right  to  occupy.  The  two  rules  generally,  perhaps  universally,  recognized 
"  and  consecrated  by  the  usage  of  nations,  have  followed  from  the  nature  of 
"  the  subject.  My  virtue  of  the  first,  prior  discovery  gave  a  righl  to  occupy. 
"  provided  that  occupancy  took  place  within  a  reasonable  time  and  was  ulti- 
"  mately  followed  by  permanent  settlement  ami  by  the  cultivation  of  the  soil. 
"  In  conformity  with  the  second,  the  light  derived  from  prior  discovery  and 
■'settlement  was  not  confined  to  the  spot  discovered  or  first  settled  The  ex- 
••  tent  of  territory  which  would  attach  to  such  first  discovery  or  settlement 
"  might  not  in  every  case  he  precisely  determined.      l>ut  that  the  first  discovery 

"  and  subsequent  settlement  within  a  reasonable  time  of  the  mouth  of  a  river, 
"  particularly  if  none  of  its  branches  had  been  explored  prior  to  suchdis- 
"  covery,  gave  the  right  of  occupancy  and  ultimately  of  sovereignty  to  the 

"  whole  country  drained  by  such  river  anil  its  several  branches,  has  been  gen- 
erally admitted.  And  in  a  question  between  the  United  States  and  Great 
"  Britain  her  acts  have  with  propriety  been  appealed  to  as  showing  that  the 
"  principles  on  which  they  rely  accord  with  their  own." 

Mr.  Gallatin,  in  support  of  his  contention,  appealed  to 
the  language  of  ancient  charters  given  to  companies  of  ad- 
venturers, and  to  individual  explorers,  by  various  European 
sovereigns,  as  evidence  of  the  practice  of  European  nations 
in  regard  to  the  rights  resulting  from  discovery.  But  the 
British  Commissioners  replied  that  those  charters  had  no 
valid  force  or  effect  against  the  subjects  of  other  sovereigns, 
but  could  only  bind  and  restrain,  v/'r/ore  s/io,  those  who 
were  under  the  jurisdiction  of  the  grantor  of  the  charters, 
and  that  although  they  might  confer  on  the  grantees  an 
exclusive  title  against  the  subjects  of  the  same  sovereign 
power,  they  could  only  affect  the  subjects  of  other  sovereign 
powers  so  far  as  the  latter  might  be  bound  by  the  common 
law  of  nations  to  respect  acts  of  discovery  and  occupation 
effected  by  the  members  of  their  independent  political  com- 
munities. This  reply  of  the  British  Commissioners  to  the 
American  Commissioner,  Mr.  Gallatin,  was  claimed  to  be 
in  perfect  harmony  with  the  principle  under  which  Great 


10 


Britain,  France  and  Holland  refused  to  recognize  the  au- 
thority of  the  Papal  domination  by  virtue  whereof  Spain 
and  Portugal  claimed  to  exclude  all  other  European  nations 
from  the  possession  and  use  of  the  lands  and  seas  which 
had  been  granted  to  them  in  the  famous  Bull  of  Pope 
Alexander  VI.  in  1493  ;  and  that  accordingly  when  the 
Spanish  Ambassador  remonstrated  against  the  expedition 
of  Drake,  Queen  Elizabeth  replied  that  "  She  did  not  un- 
"  derstand  why  either  her  subjects,  or  those  of  any  other 
"  European  power,  should  be  debarred  from  traffic  in  the 
"  Indies,  for  she  did  not  acknowledge  the  Spaniards  to  have 
"  any  title  by  donation  of  the  Bishop  of  Rome.  So  she 
"  knew  no  right  they  had  to  any  places  other  than  those 
".they  were  in  actual  possession  of,  for  their  having  touched 
"  only  here  and  there  upon  a  coast  and  given  names  to  a 
"  few  rivers  and  capes  were  such  insignificant  things  as 
"  could  in  no  way  entitle  them  to  property  further  than  in 
"  the  parts  where  they  actually  settled  and  continued  to 
"  inhabit." 

The  position  of  law  maintained  on  behalf  of  the  United 
States  by  Mr.  Gallatin  in  1827  had  been  previously  ad- 
vanced by  Mr.  Rush  in  1824,  when  American  Minister  in 
London.  "  I  asserted,"  he  writes  to  the  American  Secre- 
tary of  State,  Mr.  Adams,  "that  a  nation  discovering  a 
"  country  by  entering  the  mouth  of  its  principal  river  at 
"  the  sea  coast  must  necessarily  be  allowed  to  claim  and 
"  hold  as  great  an  extent  of  the  interior  country  as  was 
"  described  by  the  course  of  such  principal  river  and  its 
"  tributary  streams." 

A.  faithful  application  of  the  foregoing  American  prin- 
ciples to  the  material  historical  facts  surrounding  the  dis- 
covery and  settlement  of  the  Province  of  New  York  will, 
it  is  believed,  confirm  and  strengthen  the  opinion  that 
England  had  no  valid  title  thereto  or  therein. 

The  cruise  in  1618  of  one  Dermer,  an  Englishman,  from 
Cape  Cod  along  the  coast  to  Cape  Charles,  over  which 
cruising  ground  Block,  a  Dutchman,  had  been  five  years 
before,  se^ms  to  have  given  in  London  the  first  authentic 


11 


information  from  an  English  source  <>f  that  region.  Dermer 
visited  in  thai  year  Manhattan  Island,  where  he  found  the 
Dutch  established.  He  did  not  stop  anytime,  nor  did  he 
leave  any  English  settlers  in  the  Dutch  province.  Sir 
Walter  Raleigh's  successful  landing  on  the  coast  of  what 
is  now  North  Carolina  in  1584-5  led  to  the  expedition  of 
Gosnold  in  L602  and  L606,  and  the  new  and  capacious  charter 
granted  by  .lames  I.  in  1606  to  the  London  and  Plymouth 
Companies,  which  charter  embraced  the  region  between 
34  and  4.")  of  latitude,  and  resulted  in  the  founding  of 
Jamestown  in  1607,  and  eventually  to  the  founding  of  Ply- 
mouth in  1620.  These  two  grants  made  to  two  separate 
companies,  one  to  operate  in  the  South  and  the  other  in  the 
North,  defined  the  limits  of  the  concessions  on  the  North 
and  South  by  lines  of  latitude.  To  the  Southern  company 
was  given  a  space  of  100  miles  along  the  coast  in  any  part 
of  the  country  between  34°  and  41°,  and  to  the  Northern 
company  similar  privileges  between  38°  and  45°.  By  the 
overlapping  of  the  two  grants  the  middle  region  between 
38  and  41  ',  which  included  the  Bay  of  New  York,  a  free, 
middle  zone  was  left,  open  to  either  company,  under  the  re- 
striction that  the  last  plantation  made  should  not  approach 
within  100  miles  of  one  already  planted.  It  is  also  to  be 
mentioned  that  the  grant  of  1606  by  James  I.  only  covered 
'•territories  in  America,  either  appertaining  unto  us,  or 
"  which  are  not  now  actually  possessed  by  any  Christian 
••  prince  or  people,"  thus  emphasizing  the  law  that,  while 
discovery  may  give  an  inchoate  title,  there  must  be  settle- 
ment, occupation,  use  and  actual  possession  to  make  a  com- 
plete title  as  against  a  foreign  nation.  "But  at  the  time 
the  patent  was  sealed,"  says  Brodhead  (Vol.  i..  p.  11),  "no 
"  English  navigator  had  searched  the  American  coast  fur- 
"  ther  south  than  Buzzard's  Bay  nor  further  north  than  Roa- 
"noke"  *  *  and  "  not  (p.  15)  a  single  English  colony 
was  permanently  planted  north  of  Virginia  until  1620." 
The  new  patent  for  New  England,  granted  by  James  I.  in 
16-20,  which  gave  to  the  Plymouth  Council  an  absolute 
property  in  all  the  American  territory  between  403  and  48°, 


12 


and  from  the  Atlantic  to  the  Pacific,  and  which  was  signed 
a  week  before  the  "  Mayflower  "  arrived  at  Cape  Cod,  did, 
like  that  of  1606,  except  any  territories  "  actually  possessed 
or  inhabited  by  any  other  Christian  prince  or  State,"  as  was 
at  that  time  Manhattan  Island.  The  active  movements  of 
the  Dutch  in  the  colonization  and  settlement  of  New  Neth- 
erlands, and  the  fitting  out  in  Holland  of  many  new  ships  for 
Manhattan,  inspired  the  proprietors  of  the  Plymouth  colony 
to  vindicate  their  assertion  of  an  English  title  against  the 
Hollanders,  who,  they  affirmed  to  the  King,  "  as  inter- 
lopers/^ into  the  middle  between"  Virginia  and  New 
England.  The  British  Ambassador  at  the  Hague  was  in- 
structed to  bring,  and  he  did  bring,  the  matter  to  the  notice 
of  the  States  General,  and  the  unlawfulness  of  the  Dutch 
settlement  in  New  Netherlands  was  asserted  on  the  claim, 
which  subsequent  examination  has  proved  to  be  unfounded, 
that  "  his  Majesty's  subjects  have  many  years  (1621)  taken 
possession  of  the  whole  precincts."  The  British  Ambassa- 
dor asked  that  the  settlement,  and  also  the  departure  of  the 
six  or  eight  ships  then  fitting  out,  might  be  arrested,  and 
he  insisted  that  the  title  of  British  subjects  to  Manhattan 
Island  "  by  right  of  first  occupation  "  was  not  to  be  contra- 
dicted. Here  again  title  was  conceded  to  depend  on  "  occu- 
pation," which  occupation  by  Englishmen  of  Manhattan 
Island  and  of  the  then  Province  of  New  Netherland,  geo- 
graphers and  historians  of  all  nations  now  agree,  did  not, 
as  a  fact,  then  exist.  Neither  the  Dutch  settlements  nor 
the  sailing  of  the  ships  were,  however,  arrested  or  inter- 
fered with. 

In  the  year  1631  occurred  another  incident  tending  to 
show  that  any  asserted  English  title  to  Manhattan  must,  in 
the  opinion  of  the  Government  at  London,  depend  not 
merely  on  first  discovery,  but  on  English  "  occupation  and 
possession."  The  Dutch  ship  in  which  the  third  Dutch 
Governor  and  Director  General  of  New  Netherland  em- 
barked for  Holland  was  carried  out  of  her  course  by  stress 
of  weather  into  an  English  port,  where  she  was  seized,  on 
the  suit  of  the  Plymouth  Council  in  London,  and  prose- 


13 


cuted  for  condemnation  on  the  charge  of  trading  unlaw- 
fully with  the  King's  dominions.  The  Dutch  Ambassadors 
in  London  presented  to  the  King  in  person  a  remonstrance 
against  the  detention  of  the  ship,  who  undertook  to  make 
:i  personal  inquiry  into  the- circumstances.  The  seizure  led 
to  a  diplomatic  correspondence  between  London  and  the 
Hague  concerning  the  relative  merits  of  the  conflicting 
claim  of  jurisdiction,  asserted  by  the  Dutch  West  India 
Company  on  the  one  hand,  and  by  the  English  Plymouth 
Company  on  the  other  hand,  over  the  Province  of  New 
Netherlands,  wherein  the  title  of  the  English  was  asserted 
to  l>e  by  "  liist  discovery,  occupation  and  possession  which 
they  have  taken  thereof,  and  by  charters  and  letters  patent 
obtained  from  our  sovereigns."  The  diplomatic  corre- 
spondence resulted  in  a  release  of  the  vessel,  "saving  and 
without  any  prejudice  to  his  Majesty's  rights."  The  seizure 
of  the  ship  had.  it  may  be  conceded,  the  effect,  which  was 
probably  all  that  the  Government  at  London  desired,  to 
assert  in  that  form  a  title  to  New  Netherlands,  which  an 
unprotested  Dutch  occupation  would  destroy. 

In  April  1633,  there  was  another  incident  which  ex- 
hibited how  complete,  in  that  year,  was  Dutch  power 
and  control  over  the  province.  A  London  vessel,  the 
"  William,"  arrived  at  Fort  Amsterdam,  in  what  is 
now  the  harbor  of  New  York,  and  w7as  the  first  English 
vessel  to  enter  the  Hudson  River.  Her  supercargo  as- 
serted the  right  to  trade  in  the  province,  and  refused 
to  retire  from  his  contention.  Whereupon  he  and  his 
ship  were,  by  the  Dutch  Director  General,  compelled 
by  force  to  put  to  sea  and  leave  the  province.  Her  super- 
cargo returned  to  London,  demanding  damages  and  redress, 
but  there  is  no  evidence  that  any  action  wras  taken  by  the 
English  Government. 

In  the  month  of  July,  1646,  Petrus  Stuyvesant  was  ap- 
pointed Director  General  of  the  Province,  and  was  by  the 
States  General  of  the  United  Netherlands  authorized  and 
commissioned,  in  cooperation  with  a  Council,  "  to  direct  all 
matters  appertaining  to  traffic  and  war,"  and  "to  admin- 


14 


ister  law  and  justice,  as  well  civil  and  criminal.'1''  In 
1647  he  arrived.  He  reorganized  the  Courts  of  Justice.  He 
conceded  to  the  people  the  principle  and  right  of  represen- 
tation in  the  Government.  His  sway  over  Manhattan  Island 
was  unresisted.  He  concluded  an  arrangement  in  1650,  at 
Hartford,  Connecticut,  with  the  deputies  of  the  English 
Colonies,  which  was  approved  by  Holland,  and  by  which 
jurisdiction  of  Holland  in  New  Netherlands  was  recognized, 
the  boundary  line  between  Connecticut  and  the  Province  of 
New  Netherlands  was  established,  and  regulations  for  the 
mutual  surrender  of  runaway  slaves  were  made.  From  that 
date  down  to  1664,  whatever  may  have  been  the  character 
and  force  of  the  difficulties  of  political  rule  and  administra- 
tion that  he  experienced  on  the  extreme  borders  of  the 
province,  the  sway  of  the  Dutch  over  Manhattan  Island, 
the  greater  portion  of  the  region  on  the  navigable  part  of 
the  Hudson  River,  and  the  greater  part  of  the  province, 
was  unresisted  and  complete,  and  continued  so  to  be  till 
1664. 

"What  was  the  legal  character  of  the  transaction  of  1664 
which  resulted  in  unfurling  for  the  lirst  time  the  English 
tlag  over  Port  Amsterdam  and  exchanging  the  name  of 
New  Netherlands  for  New  York  '.  It  was  influenced  by 
the  negotiations  of  1654,  concluded  by  Cromwell  with  Hol- 
land, in  consequence  of  which  the  Protector  not  only  de- 
sisted from  the  contemplated  English  attack  on  New 
Netherlands,  but  virtually  recognized  the  title  of  the  Dutch 
to  the  province.  Tn  January,  1664 the  Dutch  Ambassadors 
at  London  were  instructed  by  the  States  General  to  press 
for  the  ratification  by  the  British  Government  of  the 
articles  of  the  Hartford  Treaty,  concluded  fourteen  years 
before,  and  also  Cor  a  delimitation  of  the  boundaries  between 
the  English  and  Dutch  colonies.  That  demand,  made  in 
the  first  month  of  L664,  would,  if  yielded  by  Charles  II., 
have  been  a  ratification  of  the  recognition  of  Dutch  title  to 
New  Netherlands  made  by  Cromwell  ten  years  before. 
Another  reason, — more  general  and  irresistible  than  a  dis- 
pute over  a  boundary  line, — precipitated  the  crisis.     The 


L6 


rivalry  of  trade  was  arousing  the  tremendous  energies  of 
the  two  greatest  commercial  powers  of  the  world.  The 
maintenance  of  the  British  Navigation  Ad  was  deemed  by 
the  English  rulers  of  the  day  vital  to  the  success  of  England. 
Strictly  enforced  at  home,  it  was  evaded  in  America,  and 
Largely  on  account  of  the  presence  <>l'  the  Dutch  in  what  is 
now  the  Harbor  ;in<l  Bay  of  Nev»  York.  In  L663,  it  was 
represented  to  the  King  that  ten  thousand  pounds  ayear 
were  lost  by  that  presence.  The  seizure  of  New  Amsterdam, 
and  the  reduction  of  the  power  of  Holland  in  New  Nether- 
lands were  decreed,  and  on  the  29th  of  February,  1664,  a 
military  and  naval  expedition  was  ordered  "against  the 
Dutch  in  America."  The  Legal  significance  of  the  transac- 
tion comes  more  clearly  out  by  taking  note  of  the  fact  that 
the  Patent  to  the  Duke  of  York,  was  uot  issued  till  two 
weeks  later,  and  on  March  12,  1664.  An  English  fleet, 
consisting  of  one  man-of-war  of  36,  one  of  30,  one  of  16, 
and  a  transport  of  10  guns,  with  three  full  companies  of 
tlif  King's  veterans,  commanded  by  three  commissioners, 
all  officers  in  the  Royal  army,  sailed  from  Portsmouth  for 
the  scene  of  encounter  in  New  York  on  May  15,  1664.  On 
reaching  Boston,  military  aid  was  demanded  from  the 
Massachusetts  colony.  The  expedition  anchored  near 
Coney  Island,  just  outside  the  harbor  of  New  York,  where 
it  was  joined  by  militia  from  Connecticut.  The  city  as 
well  as  the  Hudson  River  were  thus  made  incapable  of 
military  defence,  by  the  Dutch.  A  commission  to  negoti- 
ate the  terms  of  surrender  was  therefore  agreed  upon 
between  Colonel  Nicolls  and  Governer  Stuyvesant,  whereby 
the  inhabitants  were  confirmed  in  the  possession  of  their 
property,  in  the  exercise  of  their  religion  and  in  their  free- 
dom as  citizens.  The  stipulations  continued  municipal 
officers  temporarily  in  their  rule.  It  was  stipulated  that 
the  "  Dutch  here  shall  enjoy  their  own  customs  concerning 
their  inheritances ;''  and  that  "  all  differences  of  contracts 
and  bargains,  made  before  this  day,  by  any  in  this  country, 
shall  be  determined  according  to  the  manner  of  the 
Dutch."     Under  those  conditions  and  stipulations  Stuyve- 


16 


sant  marched  out  of  Fort  Amsterdam  with  the  honors  of 
war  ;  Nicolls  marched  in,  and  immediately  established  a 
new  government. 

I  am  of  the  opinion  that  that  occupation  of  the 
Province  of  New  Netherland,  in  1664,  by  the  English, 
was,  in  its  legal  relations  and  consequences,  an  act  of  war, 
and  of  military  conquest  by  a  superior  force.  The  title 
flowing  therefrom  was  a  title  by  conquest,  modified  by  the 
terms  of  capitulation,  and  had  not  the  legal  relations  and 
consequences  of  a  peaceful  entry  by  the  order  of  Charles 
II.,  into  the  possession  of  a  part  of  the  territory  of  an 
ancient  English  colony,  of  right  belonging  to  the  English 
Crown,  into  which  the  Dutch  had  from  the  first  unlawfully 
intruded  and  unlawfully  maintained  themselves  for  fifty- 
five  years. 

My  opinion  that  the  occupation  of  the  Province  of  New 
Netherland  in  1664  by  the  English  was  not  a  peaceful 
assertion  of  valid  title,  but  was  an  act  of  military  conquest 
by  a  superior  force,  is  confirmed  by  the  circumstances  of 
the  treaty  between  England  and  Holland,  concluded  at 
Breda,  on  June  30,  1667.  Although  the  rupture  between 
England  and  Holland  may  not  have  been  publicly  and 
formally  announced  at  the  time  of  the  capture  by  England 
of  New  Netherlands,  yet  it  may  be  correctly  affirmed  that 
the  capture  of  New  York  was  the  first  act  of  armed 
hostility  in  the  war,  which  the  Duke  of  York  so  largely 
promoted  and  in  which  he  so  greatly  distinguished  himself, 
and  which  came  to  an  end  by  the  Treaty  of  Breda. 
Proposals  for  peace  were  first  offered  to  the  belligerents 
through  the  mediation  of  Sweden.  Plenipotentia lies  were 
appointed  by  both  countries,  and  Breda  was  agreed  upon  as 
the  place  of  meeting.  When  the  plenipotentiaries  met 
at  Breda,  England  proposed  an  armistice,  which  was 
rejected  by  the  Dutch,  and  the  Dutch  Admiral  De 
Ruyter,  with  a  portion  of  his  fleet  of  seventy  ships,  sailed 
up  the  Thames  and  the  Medway  as  far  as  Chatham. 
Both  belligerents  then  became  desirous  of  peace.  Mean- 
time Governor  Stuyvesant  had  arrived  at  the  Hague,  and 


17 


presented  to  the  States  General  his  report  of  the  surren- 
der of  New  Netherlands,  and  the  Dutch  negotiators  at 
Breda  insisted  that,  in  the  terms  of  peace,  New  Nether- 
Lands  should  be  restored  to  Holland.  Finally,  Holland 
instructed  their  negotiators  at  Breda  to  adhere  to  the  offer 
actually  made  on  the  10th  of  the  previous  September, 
namely.  "Thai  it  be  left  to  His  Majesty's  choice  to  make 
"  peace  by  a  reciprocal  restitution,  on  both  sides,  of  what 
"  had  been  seized  by  force  of  arms,  or  detained  from  the 
"  other,  either  before  or  after  the  commencement  of  the 
"  war;  or  else  that  the  one  party  retain  what  it  hath 
"  taken  by  force  of  arms,  or  otherwise  seized,  from  the 
"  other,  as  well  before  as  after  the  commencement  of  the 
"  war."  It  has  been  said  that  the  King  of  France  sug- 
gested and  urged  the  relinquishment  by  the  Dutch  of  the 
claim  of  restitution  of  New  Netherlands.  Negotiations 
for  peace  were  finally  successful.  The  portion  of  the  Treaty 
of  Breda  which  is  pertinent  to  the  question  under  consid- 
eration, is  as  follows  : 

"Articles  of  Peace  and  Alliance  between  the  Most  Serene  and  Mighty 
•'  Prince.  Charles  the  Second,  by  the  Grace  of  God,  King  of  England,  Scot  land, 
"France,  and  Ireland.  Defender  of  the  Faith,  &c. ,  and  the  High  and  Mighty 
"  Lords,  the  States  General  of  the  United  Netherlands,  concluded  the  §  j  Day 
"of  July.  1667. 

I.  "First,  that  from  this  day  there  he  a  true,  firm,  and  inviolable  peace, 
"sincere  friendship,  a  nearer  and  straiter  alliance  and  union  between  the  most 
"serene  King  of  Great  Britain,  and  the  high  and  Mighty  States  General  of  the 
"United  Provinces  of  the  Netherlands,  and  the  lands,  countries,  and  cities 
"under  the  obedience  of  both  parties,  wheresoever  situate,  and  their  subjects 
"  and  inhabitants,  of  what  degree  soever  they  be. 

II.  "  Also,  that  for  the  time  to  come,  all  enmities,  hostilities,  discords,  and 
"  wars,  between  the  said  Lord  the  King, and  the  foresaid  Loi-ds  the  States  Gen- 
"eral,  and  their  subjects  and  inhabitants,  cease  and  be  abolished  ;  and  that 
"both  parties  do  altogether  forbear  and  abstain  from  all  plundering,  depreda- 
"  tion,  liarnuloing,  injuries,  infestation  whatsoever,  as  well  by  laud  as  by  sea, 
"and  in  fresh  waters,  everywhere;  and  especially  through  all  tracts,  dominions. 
"  places,  and  governments  (of  what  condition  soever  they  be)  within  the  juris- 
"  diction  of  either  party. 

III.  "Also,  that  all  offences,  injuries,  damages,  losses,  which  his  said  maj- 
"  esty  and  his  subjects,  or  the  foresaid  States  General  and  their  subjects,  have  on 
"  either  side  sustained  during  this  war,  or  at  any  time  whatsoever  heretofore, 
"upon  what  cause  or  pretence  soever,  be  buried  in  oblivion,  and  totally  ex- 


18 


"punged  out  of  remembrance,  as  if  no  sncli  things  had  ever  past.  Further- 
"  more,  that  the  foresaid  peace,  friendship,  and  alliance  may  stand  upon  firm 
"  and  unshaken  foundations,  and  that  from  this  very  day  all  occasions  of  new 
"  dissention  and  difference  may  be  cut  off  ;  it  is  further  agreed,  that  both  the 
"  parties,  and  either  of  them,  shall  keep  and  possess  hereafter,  with  plenary 
•'right  of  sovereignty,  propriety,  and  possession,  all  such  lands,  islands,  cities, 
"forts,  places,  and  colonies  (how  many  soever)  as  during  this  war.  or  in  any 
"former  times  before  this  war.  they  have  by  force  of  arms,  or  any  other  way 
"  whatsoever,  gotten  and  detained  from  the  other  party,  and  that,  altogether 
"after  the  same  manner  as  they  had  gotten  and  did  possess  them  the  A"  day 
"  of  May  last  past,  none  of  the  same  places  being  excepted.'' 

Surinam  having  been  conquered  by  the  Dutch  from 
England  before  the  10th  of  May,  was  confirmed  to  the 
United  Provinces,  and  in  the  same  manner  England 
acquired,  by  the  treaty,  a  valid  title  to  New  Amsterdam, 
and  the  vessels  taken  during  the  war  by  either  side 
remained  the  property  of  the  captors. 

Upon  this  record  it  is  difficult  to  see  how  it  can  be  suc- 
cessfully denied  that  the  acquisition  of  New  Netherlands 
by  England  in  1664  was  by  conquest,  subsequently  con- 
tinned  and  ratified  by  treaty. 

It  is  to  be  inferred,  from  the  report  of  the  celebrated  case 
of  tkThe  Island  of  Granada,"  generally  known  in  the  law 
reports  as  that  of  Campbell  vs.  Hail,  which  gives  the 
shorthand  writer's  report  of  arguments,  as  well  as  from 
the  opinion  of  Lord  Mansfield  delivered  therein  on  Novem- 
ber 28th,  1774,  contained  in  Volume  20,  State  Trials, 
p.  289.  that  in  the  opinion  of  that  Court  the  transaction 
in  the  Harbor  of  New  York  in  1664  was  a  military 
conquest.  Lord  Mansfield,  in  the  course  of  the  argument 
and  in  ltis  opinion,  refers  to  it  as  a  " conquest."  In  his 
opinion  he  says:  "After  the  conquest  of  New  York,  in 
"  which  most  of  the  old  Dutch  inhabitants  remained,'"  &c. 

Very  inconvenient  legal  consequences  may  flow  from  a 
successful  maintenance,  in  the  United  States  at  least,  of 
the  contention  that  English  dominion  and  sovereignty  over 
Manhattan  Island  and  the  Province  of  New  York,  and  all 
the  lands  therein,  were  valid  and  complete  in  1609,  when 
Henry  Hudson  arrived,  and  continued  valid  and  complete 
down  to  1664,  and  that  the  Dutch  during  all  that  period 


I '.I 


were  mere  intruders.    For  it'  English  dominion,  sovereignty 

and  title  were  thus  valid  and  complete,  then,  by  the 
accepted  ndes  of  public  law.  both  English  and  American, 
the  aboriginal  Indians  had.  from  1609  to  L664,  no  right, 
without  English  permission,  to  convey  any  portion  of  their 

lands  to  Holland,  its  officers,  subjects  or  citizens,  and 
therefore  all  titles  to  land  depending  solely  on  such  grants, 
or  conveyances,  were  and  are  null  and  void. 

If,  then,  it  be  historical  and  legal  truth  that  New 
Netlierland  was  discovered  and  planted  by  Dutchmen,  first 
with  the  authority  and  under  the  patronage  of  the  Cham- 
ber of  the  semi-sovereign  city  of  Amsterdam,  and  Later 
on  of  the  States  General  of  the  sovereign  and  independent 
state  of  The  United  Netherlands,  which  raised  great  armies 
and  conducted  great  wars  against  the  most  powerful  nations 
of  the  world,  and  if  the  Province  of  New  Netlierland  was 
exclusively  controlled  and  governed  by  Holland  till  the 
conquest  in  1G64,  and  if  also  The  United  Netherlands  had 
a  well-ordered  system  of  jurisprudence  and  of  common 
law,  which  was  continuously  applied  in  their  American 
province  during  more  than  half  a  century,  to  all  municipal 
and  domestic  affairs,  including  marriage,  and  which  was 
in  force  in  the  Province  in  1664,  how  much  of  it  remained 
after  the  conquest  '. 

In  the  New  York  Collection  of  Colonial  Manuscripts, 
Volumes  IV.,  p.  456;  V.,  p.  197;  XVI.,  p.  40;  VIII.,  p. 
647  ;  and  XVI.,  p.  129,  are  to  be  found  two  Dutch  Ordin- 
ances relating  to  marriage.  The  first  is  entitled  "  An  Ordin- 
ance of  the  Director  <tn<l  Council  of  New  Netlierland  regu- 
htfi /iff  the  publication  of  Bans  of  Matrimonii.  Passed  19 
January,  1664."     It  is  in  the  following  words  : 

"  The  Directob  General  and  Council  op  New  Netherland. 
"  To  all  who  hear  or  se<  these  presents  read,  Greeting,  made  known: 

"  Thai  we  understand  and  are  certainly  informed  by  the  report  of  our 
"  Fiscal  and  others,  as  well  as  by  letters  from  Gravesend,  dated  18  January. 
'•  1654,  thai  the  Magistrates  there  have  presumed  and  undertaken  publicklyto 
"  post  notices  of  marriage  in  regard  to  persons  both  of  whom  arc.  and  for  a 
'•  long  tunc  have  been  domiciliated  in  and  about  this  City  of  New  Amsterdam, 
"  far  beyond  the  district  of  the  aforesaid  village,  aud  whereas  such  is  in  direct 


20 


"  contradiction  to  both  the  Civil  and  Ecclesiastical  Law  of  United  Nether- 
"  lands,  which  not  only  the  above-mentioned  Magistrates  of  Gravesend,  but 
'•  also  all  other  Colonies  within  this  Province,  are  by  contract  and  oath  bound 
"  to  observe  ;  Therefore,  the  above  mentioned  Director  General  and  Council 
"  order  and  notify  the  aforesaid  Magistrates  of  Gravesend,  and  all  others  within 
"  this  province,  to  annul  such  posting  of  intentions  of  Marriage,  and  on  sight 
"  hereof  to  withdraw  the  same,  and  in  all  cases  to  proceed  with  and  confirm 
"  no  such  Marriages,  either  privately  or  publiekly,  before  and  until  such  per- 
"  sons,  according  to  Netherland  style,  have  entered  and  received  their  bans  and 
"  proclamations  of  marriage  where  they  are  dwelling  and  have  resided  the  last 
"  years. 

"  Thus  done  in  the  Assembly  of  the  Director  and  Council  of  New  Nether- 
"  laud,  this  19  January,  A"  1654,  New  Amsterdam. 

•'  Laws  and  Ordinances  of  New  Netherlands." 

The  second  is  entitled  as  follows: — "■Ordinance  of  the 
"  Director  General  and  Council  of  New  Nether  land  to 
"  oblige  parties  to  marry  after  the  publication  of  their 
"  bans.     Passed  15  January,  1G58." 

It  is  in  the  following  words  : 

"  Whereas  the  Director  General  and  Council  of  New  Netherland  not  only 
"  are  informed,  but  have  even  seen  and  remarked,  that  some  persons,  after  the 
'•  proclamation  and  publication,  for  the  third  time,  of  their  Hans  or  Iuten- 
"  lions  of  .Marriage,  do  not  proceed  further  with  the  solemnization  of  their 
"  marriage  as  they  ought,  but  postpone  it  from  time  to  time,  not  only  weeks, 
"  but  some  months,  which  is  directly  contrary  to.  and  in  contravention  of  the 
"  good  order  and  custom  of  our  Fatherland,  wherein  being  willing  to  provide, 
"  in  order  to  prevent  the  mischiefs  and  irregularities  which  will  How  there- 
"  from  ; 

"  Tin  ii  hm  the  Director  General  and  Council  aforesaid  do  hereby  Ordain 
"  that  all  published  persons,  alter  three  Proclamations  have  been  made  and  no 
"  lawful  impediment  occurs,  shall  cause  their  marriages  to  be  solemnized 
"within  one  month  at  furthest,  after  the  last  Proclamation  or  within  that 
"  time,  appear  and  show  cause  where  they  ought,  for  refusing  ;  and  that  on 
"  pain  of  forfeiting  ten  guilders  for  the  lirst  week  alter  the  expiration  of  the 
"aforesaid  month,  and  for  the  succeeding  weeks  80  guilders  for  each  week 
"  until  they  have  made  known  the  reasons  for  refusing. 

"Furthermore,  no  .Man  and  Woman  shall  be  at  liberty  to  keep  house  as 
"  married  persons,  before  and  until  they  are  law  fully  married,  on  pain  of  for- 
"  feiting  One  hundred  guilders,  more  or  less,  as  their  quality  shall  be  found 
"  to  warrant,  and  all  such  persona  may  heainerced  anew  therefor  every  month, 
"  by  the  Officer,  according  to  the  order  and  the  custom  of  our  Fatherland. 

"Thus  done  in  Council  holden  in  Fort  Amsterdam  in  New  Netherland.  the 
"  15  January  A"    16S 

"  Laws  and  Ordinances  of  New  Netherlands,     p.  838." 

Here  is  a  distinct  assertion  of  "the  civil  and  ecclesiastical 
law  of  United  Netherland,"  and  "  the  custom  of  our  (Dutch) 


21 


fatherland"  over  the  province.  It  is  an  exercise  l»\  the 
state  over  the  institution  of  marriage  as  n  civil  institution. 
Assuming  it  to  be  true  that  the  transaction  in  the  harbor  of 
New  York  in  L 664  was  the  exercise  of  military  and  naval 
force  by  England,  which  resulted  in  a  military  capture  and 
conquest  of  the  Province  of  New  Netherland,  which  capture 
and  conquest  were  confirmed  by  articles  of  capitulation, 
what  was  the  legal  effect  of  the  transaction  on  these  two 
Ordinances  relating  to  marriage?  On  the  day  before  the 
capture,  these  two  Ordinances  were  in  force  in  the  Province 
of  New  Netherland.  Were  they  not  in  force  on  the  day 
after  the  province  was  surrendered  to  England,  and  England 
had  entered  into  complete  possession \  Did  all  the  Dutch 
municipal  laws  fall  and  perish  by  and  with  the  surrender 
of  Governor  Stuyvesant?  The  case  of  "The  Island  of 
Granada"  (20  State  Trials,  p.  239),  or  Campbell  vs.  Hall 
(Cowper,  p.  '204),  deals  directly  and  satisfactorily  with  this 
inquiry,  so  far  as  English  Law  is  concerned.  In  the  opin- 
ion of  the  Court  of  King's  Bench,  delivered  by  Lord  Chief 
Justice  Mansfield,  he  said: 

"A- great  deal  has  been  said  and  authorities  cited  relative  to  propositions 

"  in  which  both  sides  exactly  agree  or  which  are  too  clear  to  be  denied.  The 
"  stating  of  these  will  had  us  to  the  solution  of  the  first  point. 

<:  1st.  A  country  conquered  by  the  British  arms  becomes  a  dominion  of  the 
"king  in  right  of  his  crown,  and  therefore  necessarily  subject  to  the  legis- 
"  lative  powers  of  the  Parliament  of  Great  Britain. 

"2nd.  The  conquered  inhabitants  once  received  into  the  conqueror's  pro- 
'■  tection  become  subjects,  and  are  universally  to  be  considered  iu  that  light, 
"  not  as  enemies  or  aliens. 

"  3rd.  Articles  of  capitulation  upon  which  the  conquest  is  surrendered,  and 
•■  treaties  of  peace  by  which  it  is  ceded,  are  sacred  and  inviolable  according  to 
"  their  true  intent. 

"  4lh.  The  law  and  legislation  of  every  dominion  equally  affects  all  persons 
•'  and  property  within  the  limits  thereof  and  is  the  true  rule  for  the  decision 
"  of  all  questions  which  arise  there:  Whoever  purchases,  sues  or  lives  there, 
•' puts  himself  under  the  laws  of  the  place  and  in  the  situation  of  its  inhab. 
"  itants.  An  Englishman  in  Minorca,  or  the  Isle  of  Man,  or  the  Plantations, 
"  has  no  distinct  right  from  the  natives  while  he  continues  there. 

"5th.  The  laws  of  a  conquered  country  continue  until  they  are  altered  by 
"  the  conqueror.  The  justice  and  antiquity  of  this  maxim  is  incontrovertible. 
"  The  absurd  exception  as  to  pagans  in  C'alden's  case  shows  the  universality 
"  of  the  maxim.  The  exception  could  not  exist  before  the  Christian  Era 
"  and  in  all  probability  arose  from  the  mad  enthusiasm  of  the  Crusades. 


22 


"  6th.  If  the  King  has  power — and  when  I  say  the  King  I  mean  in  this 
"  case  to  he  understood  '  without  concurrence  of  parliament ' — to  make  new 
'"  laws  for  a  conquered  country,  tliis  being  a  power  subordinate  to  his  own 
"  authority  as  a  part  of  the  Supreme  Legislature  in  Parliament,  he  can  make 
"  none  which  are  contrary  to  fundamental  principles;  none  excepting  from 
"  the  laws  of  trade,  or  authority  of  Parliament,  or  privileges,  exclusive  of  his 
"  other  subjects." 

The  Lord  Chief  Justice  adds  that  "  After  the  conquest  of  New  York,  in 
"  which  most  of  all  the  old  Dutch  inhabitants  remained,  King  Charles  the 
"  Second  changed  their  constitution  and  political  form  of  Government  and 
"  granted  it  to  the  Duke  of  York  to  hold  from  his  crown  under  all  the  regu- 
"  lations  contained  in  the  letters  patent." 

And  Lord  Mansfield  further  adds  that  in  English  juris- 
prudence "the  distinction  in  law  between  a  conquered 
country  and  a  colony  is  clear  and  indisputable." 

Some  thirty  years  after  the  case  of  Campbell  vs.  Hall  was 
decided,  there  were  important  and  serious  proceedings 
before  the  Court  of  King's  Bench,  at  Winchester,  in  the 
case  of  Thomas  Pieton,  Esquire,  Governor  and  Commander- 
in-Chief  over  and  in  the  Island  of  Trinidad,  in  the  Wesl 
Indies,  on  an  indictment  for  misdemeanor,  in  causing  the 
torture  to  be  inflicted  upon  Louisa  Caldcron,  a  free  mulatto, 
in  the  Island  of  Trinidad.  Those  proceedings  defined  even 
more  clearly  the  distinction,  in  English  law,  between  a 
planted  colony  and  a  conquered  colony  ;  and  more  sharply 
emphasized  the  fifth  resolution  in  Lord  Mansfield's  opinion, 
in  Campbell  v.  Hall,  which  declared,  "that  the  laws  of  a 
"  conquered  country  continue  in  force  until  they  are  altered 
"  by  the  conqueror."  On  the  first  trial  of  the  indictment, 
in  1804,  the  jury  found  that,  at  the  time  of  the  cession  of 
Trinidad  to  England,  there  was  no  existing  law  which 
authorized  the  severities  of  torture  that  were  practiced  upon 
the  woman,  and  a  verdict  of  guilty  was  entered  against  the 
accused.  Subsequently  there  was  a  motion  for  a  new  trial 
on  new  evidence  of  the  condition  of  the  Spanish  law  respect- 
ing torture,  which  motion  was  granted.  On  the  second 
trial,  in  L808,  the  jury  found  a  special  verdict,  which,  among 
other  things,  declared  that,  previous  to  February  18th, 
1797,  Trinidad  was  a  colony  belonging  to  Spain  ;  that  on 
that  day  it  was  surrendered  to  England,  and  reduced  under 


23 


its  dominion  by  articles  of  capitulation,  wherein  it  was 
agreed  that  all  contracts  and  purchases  between  individuals, 
according  to  the  laws  of  Spain,  should  be  held  binding  ;m<l 
valid  by  the  British  Government  ;  that  the  free  colored 
people  who  had  been  acknowledged  as  such  by  the  laws  of 
Spain  should  be  protected  iu  their  liberties,  persons  and 
property  like  other  inhabitants;  bul  that  no  stipulation 
was  made  to  the  effect  that  the  laws  which  had  existed  in 
the  island  previous  to  the  surrender  should  continue,  or  be 
in  force,  other  than  as  especially  provided.  The  special 
verdict  also  found  that  up  to  the  time  the  island  was  sur- 
rendered, the  laws  of  old  Spain  were  in  force  in  Trinidad. 
and  thereby,  at  the  time  of  the  surrender,  torture  might  be 
inflicted  upon  any  person  against  whom  there  was  strong 
suspicion  of  having  committed  certain  specified  offences. 
This  special  verdict  also  declared  that  after  the  island  was 
surrendered,  and  on  June  1st,  1801,  the  King  of  England 
did  commission  and  constitute  the  defendant,  Picton,  to  be 
Governor  and  Commander-in-Chief  of  Trinidad  ;  that  Pic- 
ton assumed  the  Government  of  the  island  by  virtue  of  this 
commission,  and  did  order  and  command  the  torture  to  be 
applied.  In  behalf  of  the  accused,  it  was  contended  that 
by  the  conquest,  and  the  terms  of  capitulation,  all  the 
powers  of  the  Royal  Audience  of  Caraccas  were  vested  in 
General  Picton,  and  consequently  he  had  done  nothing 
illegal  in  inflicting  the  torture,  for  the  reason  that  the  tor- 
ture was  part  of  the  law  of  the  Island  of  Trinidad,  as  well 
before  as  after  the  conquest.  On  the  part  of  the  prose- 
cution, there  was  an  attempt  to  qualify  the  principle 
expounded  by  Lord  Mansfield  in  Campbell  vs.  HaM,  to  the 
extent  that  the  laws  and  customs  of  the  conquered  country 
shall  hold  place,  unless  they  are  contrary  to  the  religion 
of  England,  or  unless  they  enact  filing*  that  ore  mala  in  se. 
Mr.  Nolan,  in  behalf  of  the  Crown,  insisted  that  in  the  case 
of  a  conquered  country  the  old  laws  of  the  conquered  must 
be  put  into  re-operation,  if  at  all,  by  the  will  of  the 
conqueror,  either  expressed  or  implied  ;  that  the  British 
Constitution  vests  that  power  in  the  King,  who  may  give 


24 

the  authority  to  the  Commander  of  his  forces  until  his  royal 
pleasure  is  definitely  known  ;  or  the  old  laws  may  revive, 
by  the  self  action,  of  the  British  laws  and  Constitution,  sub- 
ject to  those  regulations  and  restrictions  which  are  laid 
down  in  the  books  :  but,  whether  the  laws  of  the  conquered 
are  continued  or  modified  by  the  sovereign's  will,  and 
whether  that  will  is  expressly  or  impliedly  declared,  it  is 
clear  that  no  greater  power  can  be  given  by  the  Crown  than 
the  Crown  has  to  bestow:  and  that  his  Majesty  cannot,  by  his 
individual  authority,  continue  institutions  which  he  could 
not  by  his  prerogative  originate  in  the  code  of  a  new  colony. 
Therefore  the  King  can.  neither  by  commission  nor  charter, 
invest  any  colonial  Government  with  power  to  punish  an 
accused  without  being  heard,  or  to  extract  evidence  from 
him  for  the  purpose  of  conviction  by  inflicting  torture  ;  and 
so.  the  King  cannot  continue  such  tyrannous  institutions  in 
a  conquered  colony.  Owing  to  circumstances  which  are 
fully  set  forth  in  a  note  to  the  report  of  the  proceedings  in 
this  ease,  given  in  Vol.  30.  State  Trials,  p.  955,  no  judg- 
ment was  given  by  the  Court  in  the  case;  but,  in  the 
course  of  the  argument,  Lord  Ellenborough  made  remarks 
from  time  to  time  which  must  be  taken  as  significant  of  his 
opinion.  He  said,  for  example,  (p.  943)  of  the  contention 
in  behalf  of  the  Crown  just  referred  to  : 

"  If  they  arc  iir>t  governed  by  the  old  laws,  by  what  laws  arc  they  gov- 
'  lined  .'  Either  the  old  laws  continue,  or  they  cease  on  the  conquest  ;  the 
"  laws  of  a  conquering  country  supercede  them,  or  the  old  laws  remain,  under 
'  certain  qualifications.  Who  is  to  find  out  these  qualifications?  Some  of 
"  the  persons  who  were  sent  out  from  this  country,  judging  for  themselves, 
"  may  say  that  some  of  these  laws  are  not  consistent  with  the  principles  and 
"  spirit  of  the  British  Constitution,  and  therefore  it  is  not  incumbent  upon 
"  us  to  obey  them.  *  *  *  The  former  laws  they  knew,  because  they  lived 
"under  them,  and  obeyed  them  before;  but  now  the  two  laws  are  com- 
'•  pounded.  You  will  find  sufflcienl  difficulty  in  compounding  the  two  laws. 
"  It  is  supposed  to  be  a  part  of  the  custom  of  China  to  expose  infants.  It 
"  would  be  difficult,  prima  facte,  to  say  that  that  was  murder  in  them  ;  and 
"  yet  that  is  malum  in  v.  It  is  as  much  malum  in  u  as  anything  can  be  sup- 
"  posed  to  be." 

To  this  suggestion  from  the  bench,  Mr.  Nolan,  in  behalf 
of  the  Crown,  replied  : 


26 


■■  Your  Lordships  observe  thai  the  position  in  2  I'.  Williams  Bays  thai  the 
••  laws  of  this  country  shall  prevail  where  those  of  the  conquered  country  are 
"  either  contrary  to  the  laws  of  God,  or  arc  totally  silent." 

"  Lwd  Ellenborough :  My  difficulty  is  ahoul  those  exceptions.  'Funda- 
"  mental  principles'  and  •  Main  in  ae,'  introduce  some  difficulty." 

"  Mr.  Nolan  :  There  is  undoubtedly  a  difficulty  in  drawing  the  precise 
"  line,  liul  so  there  is  in  all  hmiian  matters  ;  and  tins  duty  must  be  reposed  in 
"  Judicial  discretion." 

"  l.mil  EUmborongh :  All  difficulty  in  drawing  the  line  is  avoided,  if,  in 
"  conformity  to  the  fifth  resolution  in  Campbell  v.  //"//,  you  say  that  the  laws 
"  of  a  conquered  country  continue  in  force  until  they  are  altered  by  the 

'•  conqueror.  That  leaves  no  uncertainty  or  difficulty,  as  the  colony  is  to  re- 
' '  main  as  it  was  before." 

"  Mr.  Nolan  :  My  Lords,  the  mischief  and  grievous  consequences  I  have 
"  pointed  out  are  not  simply  theoretical.    Conquerors  can  loose  no  privilege 

"  as  the  direct  result  of  their  conquest  ;  but,  to  subject  them  to  Strange  laws, 
•'  of  which  they  have  never  heard,  is  to  deprive  them  of  their  rights,  and  strip 
"  them  of  their  privileges." 

"  Lord  BUenborough  :  The  conquerors  individually,  loose  no  privilege  ;  but, 
"  if  they  choose  to  go  abroad,  into  a  Spanish  colony,  where  different  forms  of 
"  law  prevails,  they  must  abide  by  the  consequences.  You  must  cither  admit 
"  they  the  old  laws  continue  until  the  new  are  introduced,  or  they  must  be 
"  positively  in  a  lawUti  stale." 

To  the  same  effect  are,  I  think,  the  legal  consequences  of 
a  completed  conquest  in  the  domain  of  international  law. 
The  subject  is  carefully  and  concisely  treated  by  Mr. 
Richard  Henry  Dana,  Jr.,  in  his  excellent  Notes  to  Whea- 
ton's  "  Elements  of  International  Law."  In  Note  109,  page 
A'M  of  the  Eighth  Edition  of  Wheaton,  published  in  1866, 
Mr.  Dana  gives  a  careful  summary  of  the  positions  taken 
on  the  subject  of  conquest  by  Hefter,  Puffendorf,  Yattel, 
Grotins,  Wildman  and  Phillimore  among  others,  and 
says : 

"  The  reasons  for  considering  the  former  political  laws  as  abrogated  (in 
"  ease  of  completed  conquest),  do  not  npply  to  the  municipal  laws  which  regu- 
"  late  the  private  relations  of  individuals  to  each  other  and  their  private  rights 
"  of  property.  The  change  of  sovereignty  does  not  obliterate  the  subject 
"  matters  of  property  or  obligation,  nor  the  parties  to  the  rights,  duties  or 
"  compacts  ;  and  in  respect  to  these  things  there  is  a  permanent  necessity  for 
"  an  uninterrupted  existence  of  laws  of  some  kind.  Accordingly,  it  is  held 
"  that  the  municipal  Private  Code  remains  in  force.  YTet  it  is  not  propria 
"  vigore,  or  by  the  will  of  the  people  of  the  conquered  country,  but  by  the 
"  acquiescence  of  the  new  sovereignty  which  is  held  to  intend  the  continu- 
"  ation  of  such  laws  in  the  absence  of  new  laws  displacing  them." 


26 


To  the  same  effect  is  the  opinion  of  Halleck  in  his  "  In- 
ternational Law  "  (see  Baker's  London  Edition  of  1878). 
General  Halleck  treats  the  subject  more  completely  and 
elaborately  than  has  any  other  author.  His  education  as 
a  soldier  in  the  Military  Academy  of  the  United  States  at 
West  Point,  his  subsequent  education  and  experience  as  a 
practising  lawyer  in  California,  together  with  his  later  ex- 
tensive military  command  and  service  in  the  field,  and  as 
Chief  of  Staff  of  the  War  Department  at  Washington 
during  the  Civil  War  in  America,  have  given  to  his 
opinions  on  this  subject  exceptional  value.  The  subject  of 
the  "  Rights  of  Complete  Conquest"  occupies  some  thirty 
pages,  and  the  34th  Chapter  of  his  second  volume.  He 
considers  at  length  therein  the  rules  of  English  law,  Inter- 
national law  and  American  law,  governing  the  subject. 
He  says : 

"The  English  Courts  make  a  distinction  between  ceded  or  conquered 
"  territory  and  territory  acquired  by  discovery  or  occupancy,  and  peopled  by 
"  the  discoverer,  British  colonists  are  considered  as  carrying  with  them  such 
"  laws  of  their  sovereign  as  arc  beneficial  to  the  colony,  and  applicable  to  the 
"  new  condition  of  the  colonists  *  *  and  laws  passed  after  the  settlement 
'•  of  a  discovered  or  occupied  country  do  not  affect  Buch  colony  without  special 
"provisions  to  thai  effect,  unless  they  relate  to  the  exercise  of  the  powers 
"  of  the  sovereign  with  regard  to  foreign  relations,  navigation,  trade,  revenue 
"  and  shipping.  Hut  the  rule  is  different  with  respect  to  territory  acquired 
"  by  cession  or  conquest,  for  the  municipal  laws  of  such  territory  at  the  time 
"  of  its  acquisition  remain  until  changed  by  competent  authority,  and  the  sub- 
"  jects  of  the  new  sovereignty  who  enter  such  newly  acquired  territory  do 
"  not  in  general  cany  with  them  the  laws  of  their  sovereign  ;  hut  with  respect 
"to  their  rights  and  relations  inter  se,  they  are  in  the  same  condition  as  the 
"  inhabitants  of  BUCh  territory  ;  thai  is,  they  are  governed  by  the  laws  and 
"  usages  of  the  country  at  the  time  of  the  conquest  or  cession." 

Again : 

"  When  it  is  said  that  the  law  political  ceases  on  the  conquest  and  that  the 
"  law  municipal  continues  till  changed  by  the  will  of  the  conqueror  it  is  not 
"  meant  that  these  latter  laws  propria  vigor*  remain  in  force,  but  that  it  is  pre 
"sumed  the  new  political  sovereign  has  adopted  and  continued  them  as  a 
"matter  of  convenience.  They  do  not  derive  any  force  from  the  will  of  the 
"conquered,  for  the  person  capable  of  having  and  expressing  a  will,  or  body 
"  politic  or  lawmaking  power  of  the  colony,  is  extinguished  by  the  conquest. 
"  When,  therefore  we  come  to  pronounce  upon  the  force  of  a  law  of  the  con- 
"  quered  people  after  the  conquest  and  to  determine  whether  it  has  been  tacitly 


27 


"adopted  by  the  conqueror  we  must  look  to  the  character  of  its  provisions 
"and  compare  them  with  the  laws  and  institutions  <>r  the  conquering  Btate: 
"  That  is,  with  the  will  of  ihe  conqueror  as  expressed  by  himself  in  similar 
"matters.  Whatever  is  in  conflict  with  or  directly  opposed  to  such  expres- 
"sions  of  his  will  we  cannol  presume  to  have  been  adopted  by  his  tacit  con- 
"sent  Hence  Lord  Cokesays,  if  a  christian  King  should  conquer  an  infidel 
"country  the  laws  of  Ihe  conquered  ipso  facto  cease,  because  il  is  nol  to  be 
•■  presumed  that  a  christian  King  has  adopted  the  laws  of  an  infidel  race.  But 
•■  where  there  is  no  such  conflict  in  the  institutions  and  laws  of  the  two  coun- 
■•  tries  those  of  the  conquered  which  regulate  personal  relations,  commercial 
"transactions  and  property  in  all  its  moods  of  transfer  and  acquisition  are 
"presumed  to  have  been  adopted  as  a  matter  of  convenience.  This  rule  of 
"  international  law  is  both  reasonable  and  just.  Each  case  must  rest  upon  its 
"own  basis  and  be  judged  of  by  its  own  circumstances.  From  this  view  of 
"  the  jurisprudence  of  the  conquered  country  we  must  determine  what  laws  of 
"  the  acquired  territory  remain  in  force  and  what  laws  of  the  conqueror, 
"  i>n>j)ri"  vigors,  extend  over  such  territory." 

The  acquisition  by  the  United  States,  from  time  to  time, 
of  inhabited  countries,  either  by  conquest,  or  cession,  or 
both,  has  naturally  brought  before  the  Supreme  Court  of 
the  I'ni ted  States  one  or  more  aspects  of  the  inquiry  pre- 
sented in  Campbell  vs.  Hall.  Those  acquisitions  have  been 
from  England,  France  and  Mexico.  In  1833,  there  came 
before  that  Court,  in  the  case  of  United  States  vs.  Perche- 
man  (7  Peters,  8(5),  a  question,  arising  under  the  treaty  be- 
tween  the  United  States  and  Spain  of  February  22,  1810,  in 
respect  to  certain  rights  in  Florida.  Chief  Justice  Mar- 
shall, delivering  the  opinion  of  the  Court,  said  : 

"  It  may  not  be  unworthy  of  remark,  that  it  is  very  unusual,  even  in  cases 
■•  of  conquest,  for  the  conqueror  to  do  more  than  to  displace  ihe  Sovereign  and 
"  assume  dominion  over  the  country.  The  modern  usage  of  the  United  States, 
"which  has  become  law,  would  be  violated.  *  *  *  The  people  change 
"  their  allegiance,  their  relation  to  their  ancient  sovereign  is  dissolved;  but 
"  their  relations  to  each  otherand  theirrights  of  properly  remain  undisturbed. 
"  If  this  be  the  modern  rule,  even  in  cases  of  conquest,  who  can  doubt  its 
"  application  to  the  case  of  an  amicable  cession  of  territory?  " 

In  MUchel  vs.  The  United  States  (9  Peters,  734),  the 
same  Court  said  : 

"  By  the  law  of  nations  the  inhabitants,  citizens  or  subjects  of  a  conquered 
"  or  ceded  country,  territory  or  province,  retain  all  the  rights  of  property 
"  which  have  not  been  taken  from  them  by  the  orders  of  the  conqueror,  or  the 
"  laws  of  the  sovereign  who  acquires  it  by  cession,  and  remain  under  their 
"  former  laws  until  they  shall  be  changed." 


28 


In  Strothers  vs.  Lucas  (12  Peters,  435)  the  same  Court 
said : 

"  The  Slate  (Missouri)  in  which  the  premises  arc  situated  was  formerly  a 
"  part  of  the  territory,  first  of  France,  next  of  Spain,  then  of  France,  who 
'■  ceded  it  to  the  United  Slates  by  the  treaty  of  1803  in  full  property,  sov- 
"  ereignty  and  dominion,  as  she  had  acquired  and  held  it;  by  which  this 
"  Government  put  itself  in  place  of  the  former  sovereigns,  and  became 
"  invested  with  all  their  rights,  subject  to  their  concomitant  obligations  to 
'•  the  inhabitants.  Both  were  regulated  by  the  law  of  nations,  according  to 
'•  which  the  rights  of  property  are  protected,  even  in  the  case  of  a  conquered 
'•  country,  and  held  sacred  and  inviolable  when  it  is  ceded  by  treaty,  with  or 
"  without  any  stipulation  to  such  effect ;  and  the  laws,  whether  in  writing  or 
"  evidenced  by  the  usage  or  customs  of  the  conquered  or  ceded  country,  con- 
"  tinue  in  force  till  altered  by  the  new  sovereign." 

In  LeitensdoTjfer  </  al.  vs.  Webb  (20  Howard,  176)  the 
Court  said  : 

•■  Upon  the  acquisition,  in  the  year  1846,  by  the  arms  of  the  United  States, 

■  of  the  Territory  of  New  Mexico,  the  Civil  Government  of  this  country 
'  having  been  overthrown,  the  officer,  General  Kearney,  holding  possession 

•  for  the  United  States,  in  virtue  of  the  power  of  conquest  and  occupaucy  and 
'  in  obedience  to  the  duty  of  maintaining  the  security  of  the  inhabitants  and 
'  their  persons  and   property,  ordained,  under  the  sanction  and  authority  of 

•  the  United  States,  a  provisional  or  temporary  government  for  the  acquired 
'  property.  By  this  substitution  of  a  new  supremacy,  although  the  former 
'  political  relations  of  the  inhabitants  were  dissolved,  their  private  relations, 

•  their  rights  vested  under  the  Government  of  their  former  allegiance,  or 
'  those  arising  from  contract  or  usage,  remained  in  full  force  and  unchanged, 
'  except  so  far  as  they  were  in  their  nature  and  character  found  to  be  in  con- 

•  tbet  with  the  Constitution  and  laws  of  the  United  States  or  with  any  regu- 

•  lations   which    the   conquering    and    occupying   authority   should   ordain. 

•  Amongst   the  consequences  which   would   be   necessarily  incident   to  the 

•  change  of  Sovereignty  would  be  the  appointment  or  control  of  the  agents  by 
'  whom  and  the  modes  in  which  the  Government  of  the  occupant  should  be 

•  administered  ;  this  result  being  indispensable  in  order  to  secure  those 
'  objects  for  which  such  a  Government  is  usually  established.     This  is  a 

■  principle  of  the  law  of  nations,  as  expounded  by  the  highest  authority. 
'  In  the  case  of    the    Fama.  in  the  fifth  of  Robinson's  Reports,   p.   106,   Sir 

■  William  Bcotl  declares  it  to  be  '  the  settled  principle  of  the  law  of  nations 
'  '  that  the  inhabitants  of  a  conquered  territory  change  their  allegiance,  and 
'  '  their  relation  to  their  former  sovereign  i-  dissolved;  hut  their  relations  to 
'  '  each  other,  and  their  rights  of  property  not  taken  from  them  by  the  orders 
'  '  of  thi'  conqueror,  remain  undisturbed.'  So,  too,  it  is  laid  down  by  Yattel. 
'  Hook  III.,  Chapter  13,  Sec.  200,  that   the  conqueror  lavs  his  hands  on  the 

■  possessions  of  the  State,  whilst  private  persons  are  permitted  to  retain 
'  their>;  they  sutler  but  indirectly  by  the  war.  and  to  them  the  result  is  that 
'  they  only  change  masters." 


29 


Chief-Justice  Marshall,  id  the  opinion  of  the  Court,  de- 
livered in  the  case  o!'  American  Insurance  Company  vs. 
Cantor  (1  Peters,  .">l  I ),  said  : 

■•  The  usageof  the  world  is  if  a  nation  be  doI  entirely  subdued  i<>  consider 
"  the  holding  of  conquered  territory  us  a  mere  military  occupation  until  its 
"  fate  shall  be  determined  at  the  treaty  of  peace  I  f  it  be  ceded  by  the  treaty 
"  the  acquisition  is  confirmed  and  the  ceiled  territory  becomes  a  part  of  the 

"  nation  to  which  it  is  annexed,  either  on  the  terms  stipulated  in  the  treaty  of 
"  cession  or  on  such  as  its  new  master  shall  impose.  On  such  transfer  of  tcr 
"  ritory  it  has  never  been  held  that  the  relations  of  (he  inhabitants  with  each 
"  other  undergo  any  change.  Their  relations  with  their  former  sovereign  are 
"  dissolved  and  new  relations  are  created  between  them  ami  the  government 
"  which  has  acquired  their  territory.  The  same  act  which  transfers  their  coun 
"  try  transfer  the  allegiance  of  those  who  remain  in  it  ;  and  the  law  which  may 
"  be  denominated  political  is  necessarily  changed,  although  that  which  regU 
"  lates  the  intercourse  and  general  conduct  of  individuals  remains  in  force 
•'  until  altered  by  the  newly  created  power  of  the  State." 

Applying  these  rules  and  principles  to  the  transaction  of 
L664  in  the  Harbor  of  New  York,  can  it  be  doubted  that 
the  Dutch  laws  of  marriage  prevailed,  and  were  in  force  in 
the  Colony  of  New  York  until  abrogated,  or  repealed,  or 
modified  by  the  conqueror  '. 

Immediately  on  taking  possession  of  New  York,  the  au- 
thority of  the  King  was  firmly  established  ;  the  boundaries 

After  this  opinion  was  in  type,  I  received,  by  the  kindness  of  Mr.  Han- 
croft-Davis,  the  reporter  of  the  decisions  of  the  Supreme  Court  of  the  United 
States,  a  copy  of  the  opinion  of  that  Court  in  the  case  of  The  Chicago  •nul 
Pacific  Railway  Co,  vs.  McOlinn,  decided  at  the  October  Term,  lsf>4.  which 
will  appear  in  Volume  114  of  the  decisions  now  in  press.  The  opinion  of 
the  full  bench,  delivered  by  Mr.  Justice  Field,  is  especially  interesting,  because 
there  was  not  in  the  case  any  element  of  the  application  of  military  force;  and 
because  the  rule  was  applied  to  a  cession  made  by  one  of  the  States  of  the 
Initial  States  to  the  Government  of  the  United  States.  The  suit  was  originally 
begun,  in  the  State  Court  of  Kansas,  to  recover  the  value  of  a  cow  ($25) 
alleged  to  have  been  killed  by  the  engine  and  cars  of  a  railway.  The  action 
was  founded  upon  a  peculiar  statute  of  Kansas  in  respect  to  the  killing  or 
wounding  of  cattle  by  railways.  After  the  enactment  of  this  law  the  State  of 
Kansas  ceded  to  the  Government  of  the  United  Stales  a  certain  tract  of  laud 
to  be  used  as  a  military  fort  (Fort  Leavenworth);  and  also  ceded  jurisdiction 
over  it.  There  was  a  railway  running  over  the  premises  at  the  time  of  the 
cession.  One  question  before  the  Court  was  whether  or  not  the  Kansas 
statute,  relating  to  the  killing  or  wounding  of  cattle  by  railways,  continued  in 
force  within  the  tract,  after  its  cession  to  the  Government  of  tin-  United 
Stales.     On  that  branch  of  the  ease  the  Court  say  : 


80 


were  arranged,  and  new  courts  of  justice  were  organized. 
The  Justices  sitting  with  the  Governor  and  his  Council, 
once  in  each  year,  in  the  Court  of  Assizes,  formed  the  Su- 
preme law-making  power  wholly  subordinate  to  the  will  of 
the  Governor,  and  after  him  to  the  approval  of  the  Duke. 
To  this  body  fell  the  duty  of  establishing  of  a  Code  of  Laws 
for  such  parts  of  the  province  as  still  remained  under  the 
Dutch  forms  of   government.      Carefully  examining  the 

'•  Upon  the  second  question  the  contention  of  the  railroad  company  is  that 
"  the  act  of  Kansas  became  inoperative  within  the  Reservation  upon  the 
-sion  to  the  United  Stales  of  exclusive  jurisdiction  over  it.  We  are 
"  clear  that  this  contention  cannot  be  maintained.  It  is  a  general  rule  cf 
"  public  law,  recognized  and  acted  upon  by  the  United  States,  that  whenever 
"  political  jurisdiction  and  legislative  power  over  any  territory  are  transferred 
"  from  one  nation  or  sovcrign  to  another,  the  municipal  laws  of  the  country, 
•'  that  is,  laws  which  are  intended  for  the  protection  of  private  rights,  con- 
"  tinue  in  force  until  abrogated  or  changed  by  the  new  government  or 
"sovereign.  By  the  cession  public  property  passes  from  one  government  to 
"  the  other,  but  private  property  remains  as  before,  and  with  it  those  munici- 
"  pal  laws  which  ate  designed  to  secure  its  peaceful  use  and  enjoyment." 

The  Court  then  explain  that  of  necessity  any  laws  of  the  Stale  of  Kansas, 
existing  at  the  time  of  the  cession,  that  were  in  violation  of  the  written  Con 
StitUtionof  the  United  States,  would  cease  to  be  of  obligatory  force  ;  "  but," 
adds  the  Court,  "  with  respect  to  other  laws  affecting  the  possession,  use  and 
'■  transfer  of  property,  anil  designed  to  secure  good  order  and  peace  in  the 
"  community,  and  promote  its  health  and  prosperity,  which  are  strictly  of  a 
•■  municipal  character,  the  rule  is  general,  that  a  change  of  government  leaves 
"  them  in  force  until,  by  direct  action  of  the  new  government,  they  are  altered 
"  or  repealed.  American  Insurance  Go.  v.  Canter, 1  Pet.,  542;  Halleck,  Inter- 
"  national  Law,  eh.  lit,  £  11."  "The  counsel  for  the  railroad  company 
"  does  not  controvert  this  general  rule  in  cases  of  cession  of  political  jurisdic- 
"  lion  by  one  nation  to  another,  but  contends  that  it  has  no  application  to  8 
"  mere    cession   of    jurisdiction   over    a    small    piece   of  territory   having     no 

"  organized  government  or  municipality  within   its  limits ;  and  argues  upon 
"  the  assumption  that  there  was    no    organized    government     within    the 
"  limits  of  Fort  Leavenworth.      In  this  assumption  he  is  mistaken, 
*****  *■*  **** 

"It  is  true  that  there  is  a  wide  difference  between  a  cession  of  political 
"jurisdiction  from  one  nation  to  another  and  a  cession  to  the  United  States 
"  by  a  Stale  of  legislative  power  over  a  particular  tract,  for  a  special  purpose 
"  of  the  general  government  ;  but  the  principal  which  controls  as  to  laws  in 
"  existence  al  the  time  is  the  same  in  b  >th.  *  *  The  law  of  Kansas  on  the 
"  subject,  in  our  opinion,  remained  in  force  afler  the  cession,  it  being  in  no 
respect  inconsistent  with  any  law  of  the  United  States,  and  never  having 
"  been  changed  or  abrogated." 


31 


statutes  of  the  New  England  Colony,  Nicolls  prepared  from 
them  a  code  of  laws,  and,  summoning  a  convention  of  dele- 
gates of  towns  to  meel  at  Bempstead,  on  Long  Island,  he 
submitted  it  for  their  approval.  The  Code  thus  established 
is  known  as  "The  Duke's  Laws,"  wherein  the  capacity  of 
persons  competent  to  contracl  a  valid  marriage  was  care- 
fully defined,  togetherwith  the  conditions  and  essentials  of 
a  valid  ceremony.  These  changes  occurred  in  June,  1664. 
The  pertinent  provisions  and  requirements  in  respect  to 
marriage  contained  in  the  "Duke's  Laws"  were  as  fol- 
lows : 

"  M  UUUCAQES. 

"  Whereas  by  the  Law  of  England  no  marriage  is  lawfully  consummated 
"without  a  minister  whose  office  it  is  to  join  the  parties  in  Matrimony  after 
■■  the  Banes  thrice  published  in  the  Church  or  a  Lycence  first  had  and  ob 
■•  tained  from  some  person  thereunto  authorized.  All  which  formality  cannot 
"  be  duly  practiced  in  these  parts. 

"  Yet  to  the  end  that  a  decent  rule  therein  may  be  preserved  It  is  Ordained 
"that  from  henceforth  the  names  and  surnames  of  each  party  who  sue  for 
"  Marriage  shall  he  publicquely  read  in  their  Parish  Church  or  place  of  usual 
"  meeting,  where  they  both  then  inhabit  three  several  Lord's  days  successively. 

"  And  where  no  Church  or  meeting  place  shall  happen  to  be,  a  publication 
"  in  writing  shall  he  first  fourteen  days  before  Marriage  upon  three  doors  of 
"  each  parish  whereof  the  parties  Inhabit  (viz.)  one  on  the  Constables  the 
"other  two  upon  any  two  doors  of  the  Over-seers  of  the  Parish  Unless  they 
"  produce  a  lycence  from  the  Governour  in  both  which  cases,  and  not  other- 
"  wise,  it  shall  be  lawfull  for  any  Minister  or  for  any  Justice  of  Peace  to  join 
••  the  Parlies  in  Marriage,  Provided  that  the  said  Partys  do  purge  themselves 
"  by  Oath  before  the  Minister  of  Justice  that  they  are  not  under  the  bonds  of 
"  Matrimony  to  any  Other  person  living.  And  if  it  shall  be  after  proved, 
"  that  either  both  of  the  Parties  are  perjured,  and  thereby  attained  a  double 
"  marriage  for  the  said  perjury  the  party  or  partys  offending  shall  be  bored 
"  through  the  tongue  with  a  red  hot  Iron  and  moreover  preceded  against  as  in 
"  case  of  adultery  is  provided  ; 

"  But  if  either  Party  be  approved  Innocent  as  to  him  or  her  Self  and  Ig- 
"  norant  of  the  others  wicked  fraud  the  Innocent  Person  shall  recover  dam- 
age against  the  nocent ;  and  be  set  at  Liberty  as  if  no  such  Marriage  had 
■•  been  made. 

"No  man  shall  harbor,  conceal  or  detain  Contrary  to  the  consent  of  the 
"  Husband  any  married  woman,  upon  penalty  of  fife  shillings  for  every  hour 
"  that  such  married  woman  remains  under  his  roof  ;  after  demand  made  by  her 
"  husband  at  the  Dwelling  house  where  his  wife  is  so  harbored  concealed  or 
"  detained.  Provided  always  that  any  woman  flying  from  the  barbarous 
"Cruelty  of  her  Husband  to  the  House  of  the  Constable  or  one  of  the  Over- 


32 


"seers  of  the  same  Parish  maybe  protected  by   them   in   the  manner  as  is 
"  directed  for  Servants  in  such  cases,  and  not  otherwise." 

*  *  *  *  *  *  #  *  * 

"If  any  man  shall  presume  to  marry  contrary  to  these  Lawes  prescribed, 
"  the  person  offending  shall  be  proceeded  againsl  as  for  adultery,  or  fornica" 
'•  lion,  according  to  evidence,  the  children  so  begotten  shall  be  reputed  Bas 
"  tards.  and  the  parents  suffer  such  paines  and  penalties  by  lines  or  punish- 
"  ment  as  they  hive  deserved." 

Certainly  up  to  this  date  there  was  no  opening  or  oppor- 
tunity for  the  entry  into  the  colony  of  marriage  according 
to  the  common  law  or  customary  usage  of  England.  The 
"Duke's  Laws "  regulating  marriage  in  the  colonies  were 
modified  from  time  to  time,  and  notably  in  the  years  1656 
166(5  and  1677.  Meanwhile,  and  up  to  1674  or  thereabouts, 
the  Colony  of  New  York  was  subjected  to  English  rule  as  a 
colony,  but  in  L672  English  politics  in  respect  to  Holland, 
and  eventually  in  respect  to  the  Colony  of  New  York,  began 
to  feel  a  change.  The  King  of  France  entered  upon  new 
plans  for  the  invasion  of  the  Spanish  Netherlands  The 
Triple  Alliance  which  had  compelled  Louis  XIV.  to  stop 
short  in  his  career  of  conquest  was  dissolved.  A  secret 
treaty,  the  full  text  of  which  has  only  come  to  light  in  the 
present  age,  was  concluded  between  the  Kings  of  France 
and  England,  by  the  stipulations  of  which  England  was 
bound  to  join  with  France  in  a  war  against  the  Dutch  Re- 
public at  such  time  as  the  French  King  should  think 
proper.  In  accordance  with  this  secret  treaty,  Charles  II. 
issued  on  March  17th,  1672,  a  declaration  of  war  againsl 
the  Dutch.  A  Dutch  squadron  was  thereupon  dispatched 
against  the  English  colonies  in  America,  which  after  cap- 
turing or  destroying  tobacco  ships  in  the  Chesapeake,  sailed 
northward,  and  on  August  7th,  167:?  anchored  off  Stater 
Island.  The  Dutch  commander  made  an  immediate  de- 
mand for  the  surrender  of  the  city.  Against  the  Dutch 
force  no  successful  resistance  was  then  any  more  possible 
than,  in  1664,  was  a  Dutch  resistance  against  the  English 
fleet.  The  English  fort  of  New  York  was  thereupon  sur- 
rendered, the  English  garrison  marched  out  with  the  honors 
of  war,  and  New  York  fell  again  into  the  hands  of  the 


33 


Dutch.  Not  long  afterward,  the  intervention  of  Spain  in 
behalf  of  Holland  induced  England  to  open  negotiations  to 
conclude  a  separate  peace  with  Holland  and  a  treaty  was 
concluded  .it  Westminster  on  February  19th,  1674.  The 
6th  and  7th  Articles  of  that  treaty  were  in  these  winds  : 

VI.  ••  Ii  Is  agreed  and  concluded,  thai  whatsoever  countries,  islands,  town-, 
"  ports,  castles  or  forts,  bave  <>r  shall  be  taken  on  both  Bides  since  the  time  that 
'•  the  late  unhappy  war  broke  out,  either  in  Europe  or  elsewhere,  and  before 
"  the  expiration  of  the  terms  above  mentioned  for  the  cessation  of  hostilities, 
■•  shall  be  restored  to  the  former  lord  and  proprietor,  in  the  same  condition 
"  they  shall  be  in  when  the  peace  itself  shall  be  proclaimed.    Alter  which  time 

"  there  shall  be  no  Spoil  Or  plunder  of  the  inhabitants,  no  demolition  of  forti- 

"  Qcations,  nor  carrying  away  of  guns,  powder,  or  other  military  stores,  which 

"  belonged  to  any  castle  or  fori  at  the  time  when  it  was  taken. 

VII.  "That  the  treaty  of  Breda  concluded  A.  I).  1007,  as  likewise  all  other 
"  preceding  treaties  confirmed  by  that  treaty,  he  renewed  and  remain  in  full 
"  force,  as  far  as  is  consistent  with  the  present  treaty." 

The  incident  of  the  re-conquest  of  New  Netherlands  by 
the  Dutch  in  1078,  and  the  subsequent  treaty  of  Westmin- 
ster in  L674,  led  to  serious  legal  complications  and  conse- 
quences in  respect  to  the  patent  issued  by  Charles  II.  to 
the  Duke  of  York  in  1664.  England  had  negotiated  by 
the  treaties  of  Breda  and  "Westminster  with  the  States 
General  as  a  sovereign,  and  as  the  possessor  of  the  Province 
of  New  Netherland.  The  patent  of  1664  to  the  Duke  of 
York  had  been  sealed  many  days  before  the  naval  expedi- 
tion against  New  Netherlands  had  been  ordered,  and  had 
sailed  from  England,  and  while  the  Dutch  were  in  the 
quiet  possession  of  that  province.  No  newr  grant  had  been 
made  to  the  Duke  of  York  after  the  Treaty  of  Breda,  which 
confirmed  to  the  English  King  his  conquest  of  the  Dutch 
province.  In  respect  to  this  new  situation,  Mr.  Brodhead, 
in  the  second  volume  of  his  History  of  New  York  (page 
260),  says  : 

"  Eminent  lawyers  very  justly  questioned  the  Duke's  pretension  to  the 
"  territory  which  England  had  recently  (1604)  recovered;  because  its  cession 
to  her  sovereign  by  the  Dutch  Government  'had  given  no  strength  to 
"original  defect-.'  James  was  qow  (1674)  obliged  to  give  up  the  claim  of 
"English  right  which  he  and  his  brother  had  formerly  maintained,  more- 
over, the  Duke  wished  to  regain  New  Jersey  which  he  had  so  foolishly  squan- 
"  dered  to  Berkeley  and  Carteret.    Besides  this,  the  boundary  agreement  with 


3-4 


"  Connecticut,  which  had  never  been  ratified  by  the  Crown,  or  by  himself, 
••  was  a  sore  point.  The  opinion  of  counsel  having  been  taken,  they  advised 
"  thai  the  Duke's  proprietorship  had  been  extinguished  by  the  Dutch  con- 
'•  quest,  and  that  the  King  was  now  (1074),  alone  seized  of  New  Netherlands 
•'  by  virtue  of  the  Treaty  of  Westminster.  The  jut  post  UminU  did  not  obtain 
"  in  New  York.  A  new  patent  to  the  Duke  of  York  was  therefore  sealed. 
"  By  it  the  King  again  conveyed  to  his  brother  the  territory  he  had  held 
"  before  and  granted  him  anew  the  absolute  powers  of  Government  he  had 
■'  formerly  enjoyed  over  British  subjects,  with  the  like  additional  authority 
"  over  any  other  person  or  persons  inhabiting  his  province.  Under  the  same 
"  description  of  boundaries.  New  Jersey  and  all  the  territory  West  of  the  Con- 
"  uecticut  River,  together  with  Long  Island  and  the  adjacent  islands  and 
"  the  regirfD  of  Pemiquid  were  again  included  in  the  grant.  The  new  patent 
'•  did  not,  as  has  been  commonly  but  erroneously  stated,  recite  and  con- 
"  firm  the  former.'  It  did  not  in  any  way  allude  to  that  instrument. 
"  It  read  as  if  no  previous  English  patent  had  ever  existed.  It  was  a 
"  si coiid  grant  :  in  almost  the  same  terms  with  the  first  ;  and  it  conveyed  to 
"  the  Duke  ostensibly  for  the  first  time  a  territory  which  the  Dutch  Govern- 
"  ment.  after  conquering  and  holding,  had.  by  treaty.  '  restored  to  His  Maj- 
'•  esty.'  Thus.  .lames  again  became  the  proprietor  of  a  vast  American  province, 
*•  over  which  he  was  to  domineer  until  his  delegated  authority  from  the  King 
'•  was  merged  in  his  inherited  right  as  a  successor  to  the  Crown." 

Here,  again,  is  confirmation  of  the  opinion  that  the  trans- 
action in  1664  was  a  military  conquest.  The  Treaty  of 
Westminster  proceeded  upon  the  principle  of  reciprocal 
restitution,  and.  if  it  was  decided  in  England  that  the  rule 
of  jus  post  Uminii  did  not  apply  to  New  Netherlands,  it 
must  have  been  upon  the  principle  that  the  title  of  England 
to  the  province  was  established  in  L664  by  the  right  of  con- 
quest, and.  therefore,  the  province  having  been  conquered 
and  confirmed  to  the  conqueror  by  the  treaty  of  peace  of 
1664,  the  English  could  claim  no  right  oipost  limini under 
the  Treaty  of  Westminster. 

The  Duke  of  York  appointed  Major  Andros  to  be  his 
Colonial  Lieutenant  and  Deputy,  giving  to  him  minute  and 
specilic  instructions  for  his  guidance,  and  among  them  was 
one  to  the  effect  that  the  laws  and  orders  established  by 
Nicollsand  Lovelace  were  not  to  be  varied  from,  "butupon 
argent  necessities  and  with  the  advice  of  the  Council  and 
the  gravest  and  most  experienced  inhabitants;'1  amino 
alteration  was  to  be  valid  unless  confirmed  by  the  Duke 
within  a   year.     Andros  assumed  the  government  of  New 


36 


York  October  31,  1674.  Be  issued  a  proclamation  Novem- 
ber i),  1(574,  declaring  "That  the  known  Book  of  L;i\\s 
"formerly  established  ;m<l  in  force  under  his  Royal  Bigh- 
"ness'  Government  is  now  again  confirmed  by  his  Royal 
"Highness,  the  which  arc  to  be  observed  and  practiced 
"together  with  the  manner  and  time  of  holding  Courts 
"therein  mentioned  as  heretofore."  This  proclamation, 
which  was  in  legal  effect  a  Royal  Order,  reestablished  the 
statutes  of  1664  in  respect  to  marriage,  and  again  closed 
any  opening  for  the  entrance  of  the  English  Common  Law, 
or  any  Common  Law,  on  that  subject. 

A  few  years  later  the  question  of  taxation  in  the  colony 
without  representation  and  laws  of  a  Colonial  Assembly, 
came  prominently  to  the  front.  A  petition  was  presented 
to  the  Duke  of  York  praying  for  a  change  in  the  form  of 
Government,  and  calling  for  a  Governor,  Council  and  As- 
sembly, the  last  to  be  elected  by  the  freeholders  of  the 
colony.  The  Duke  of  York  perceived  the  need  of  conces- 
sion to  the  popular  demand,  and  gave  notice  of  his  inten- 
tion to  Brockholls,  who  was  temporarily  acting  as  Colonial 
Governor  while  Andros  was  absent  in  England.  A  new 
Colonial  Governor,  Colonel  Dongan,  was  selected  by  the 
Duke  of  York,  who  arrived  in  New  York  on  August  28th, 
1683,  assumed  control  of  the  Government,  and  summoned 
an  Assembly,  which  met  in  the  next  October.  Its  first  act 
bore  the  title  "Charter  of  Liberties  and  Privileges  granted 
by  his  Royal  Highness  to  the  inhabitants  of  New  York  and 
its  dependencies."  On  October  4,  1664,  a  year  later,  the 
Duke  signed  and  sealed  the  charter.  In  the  instructions 
given  by  the  Duke  of  York  to  Colonel  Dongan  on  January 
27th,  1682-3,  were  the  following  : 

"  In  the  passing  and  enacting  of  all  such  laws  as  shall  he  agreed  unto  by  the 
said  Assembly,  which  I  will  have  called  hy  the  name  of  the  General  Assem- 
"  bly  of  my  colony  of  New  York  and  its  dependencies  wherein  the  same  shall 
"  he  (as  I  do  hereby  ordain  they  shall  be)  presented  to  you  for  your  assent 
"  thereunto,  you  are  to  consider  whether  the  same  be  for  the  general  good  and 
"  not  prejudicial  to  me  ;  and  if  you  find  them  so  to  be  then  you  arc  to  give 
"  your  assent  thereunto.  But  if  you  shall  judge  them  inconvenient  or  preju- 
"  dicial  you  are  to  refuse  your  assent  thereunto  and  in  all  cases  you  are  to  have 


36 


"  a  negative  voice  to  refuse  all  laws  that  are  presented  to  you.  And  when  you 
"  have  given  your  consent  to  such  laws  as  shall  he  so  agreed,  you  shall  by  the 
"  first  opportunity  transmit  the  same  to  me  under  the  band  of  yourself  and 
"  Council  and  under  the  seal  of  the  colony  (which  you  are  to  use  in  passing 
"  all  grants),  to  the  end  that  I  may  ratif}"  and  confirm  the  same  if  I  shall  ap- 
"  prove,  or  reject  them  if  I  do  not  think  them  reasonable  But  the  said  laws 
"  so  assented  unto  by  you  shall  be  good  and  binding  until  such  time  as  I  shall 
"  cause  my  dislike  of  and  refusal  to  pass  them  to  be  signified  unto  you  and 
"  from  thenceforth  the  same  shall  cease  and  be  null  and  void  to  all  intents." 

The  second  session  of  the  first  Assembly  of  the  Colony 
of  New  York  under  Governor  Dongan  began  in  October, 
1684,  and  among  the  laws  passed  by  the  Assembly  was  one 
entitled  the  "Bill  Concerning  Marriages"  which  was  in 
the  words  folloAving : 

"  'A  Bill  concerning  Marriages.' 

"  Whereas  by  the  law  of  England  noe  Marriage  is  lawfully  consumatcd 
"Without  a  Minister  whose  Office  is  to  joyne  the  partyes  in  matrimony  after 
"  the  Banes  thrice  published  in  the  Church  or  a  Lyceuce  first  had  and  obtained 
"  from  sonic  Other  person  thereunto  authorized  all  which  formality  cannot  be 
'•  duel;  practised  in  these  parts.  Yett  to  the  end  a  decent  Rule  may  be  therein 
'-observed,  Be  it  enacted  by  the  Generall  Assembly  and  by  the  authority  of 
"  the  same  Thai  from  henceforth  the  names  and  sirnamesof  Each  party  who 
"intend  Marriage  shall  be  publiquely  read  in  the  Parish  Church  or  usual 
"  meeting  place  where  they  both  then  inhabitt  three  several]  Lord's dayes  to- 
"  gether  or  where  noe  Church  or  publiquc  meeting  place  shall  happen  to  be  a 
"publicacon  in  writeing  shall  be  fixed  fourtccne  ilaycs  before  Marriage  on  the 
"door  of  the  Constable  of  Each  Parish  where  the  partyes  inhabit  unless  they 
"  bring  or  produce  a  Lycence  under  the  hand  and  Sealc  of  the  (Jovernour  in 
"  all  which  cases  and  not  otherwise.  It  shall  be  lawfull  for  any  Minister  or 
"  Justice  of  the  peace  within  this  Province  to  joine  together  in  Matrimony  the 
"  partys  so  published  or  produceing  a  Lycence  as  aforesaid, Provided  always 
"  they  bring  a  certificate  from  under  the  Minister's  hand  that  published  them 
"or  under,  the  Constables  hand  on  whose  doores  their  names  were  affixed 
"  which  Certificate  shall  be  sent  to  the  office  of  the  Register  of  the  County  and 
"  there  Entred  on  Record  together  with  a  certificate  of  their  Marriage  with  the 
"  day  and  date  thereof  from  the  party  by  whom  they  were  Marrycd  thereto  re- 
"main  in  perpetuara  rei  memoriam  for  Entring  and  recording  of  which  said 
"certificates  the  Gierke  or  Register  shall  be  paid  by  the  party  marryed  for  Each 
"  one  shilling.  Provided  alsoe  that  said  partyes -purge  themselves  by  Oath  if 
"  required  before  the  Justice  of  the  Peace  or  the  Minister  who  have  hereby 
"  power  to  administer  the  same  that  they  are  not  under  thebondsof  matrimony 
"  to  any  other  person  liveing,  and  if  it  shall  after  happen  to  be  proved  that 
"  either  or  both  of  the  said  partyes  are  perjured  and  thereby  obtained  another 
"marriage  for  the   said    perjury  the   party  or  partyes  offending  shall  suffer 


'tf 


'as  in  cases  of  Perjury  and   further  be  proceeded  against  as  in  cases  of 

■  Polygamy. 

•■  Provided  always  that  if  either  parly  be  approved  innocent  the  said  party 
'so approved  as  aforesaid  may  be  free  to  many  whom  they  pleaBe  not  forhid- 

•  ilcn  by  the  Laws  of  the  Province. 

••  Be  ii  further  enacted  by  the  authority  aforesaid  Thai  if  anj  man  shall  pre- 
sume to  marry  contrary  to  this  Law  prescribed  the  person  offending  shall  be 

■  proceeded  against  as  for  fornication  and  the  Minister  or  Justice  thai  marryed 
'thrm  shall  forfeit  twenty  pounds  and  be  suspended  from  his  benefice  and 

■  office. 

"  Be  it  further  enacted  by  the  authority  aforesaid  That  if  any  person 
'  whether  man  or  woman  travailing  by  Sea  or   Land   into  any  foireigne  parts 

'  which  voyage  by  Computacdn  may  he  perfected  in  one  yeare  or  lesseof 
'  whom  noe  certaine  knowledge  or  news  shall  be  had  within  five  yeares  after 
'  his  or  her  departure  nor  of  any  who  accompanied  him  or  her  in  the  Voyage. 

•  It  may  be  justly  presumed  that  such  person  is  Dead  and  after  the  Expiracon 
'  Of  five  COmpleate  ycaics  as  aforesaid  it  shall  and  may  he  lawfull  for  the 
'  other  person  to  Remarry. 

"  Provided  Always  That  if  either  the  man  or  woman  shall  at  any  time  after 

'  the  expiracon  of  live  yeares   return   and    bring    full  and   sufficient  testimony 

'  That  he  or  she  hath  divers  ways  indeavoured  bywriteing  or  messages  to  make 

'  known  to  his  wife  or  her  husband  that   he  or  she  were  then  Liveingor  I  hat 

•  they  were  by  imprisonment  or  bond  Slavery  Lawfully  hindred  from  giving 

•  such  informaeon  It  shall  and  may  be  law  full  for  the  said  man  or  woman  to 
'Challenge  his  or  her  premarriage  and  may  by  an  order  out  of  the  High 
'  Court  of  Chancery  Cohabit  as  formerly. 

"  Provided  Always  That  if  neither  shall  sue  for  such  Order  they  may  by 

■  mutual!  agreement  Enter  a  Release  to  Each  other,  which  Release  shall  be 
'  Entred  in  the  Office   of   Records  and  both  remaiue  free  from  their  former 

■  obligacdn. 

"  Provided  nothing  in  this  Act  shall  be  construed  or  intended  to  prejudice 
'  the  Custome  and  manner  of  Marriage  amonst  the  Quakers,  but  their  manner 
'  and  forme  of  marriage  shall  be  judged  Lawfull,  provided  they  adinitt  of 
'  none  lo  marry  that  are  restrained  by  the  Law  of  God  contained  in  the  five 
'  Books  of  Moses,  and  that  they  permitt  none  to  be  marryed  within  their 
'  Congregation  or  meeting  of  any  other  persuasion  then  themselves  by  Licence 
'  from  the  Governour  or  publicacon  as  this  Law  directs  and  record  made  of 
'  such  marriages  as  this  Law  does  direct  under  the  penalty  aforesaid. 

State  of  New  York.  j 

'  Office  of  the  Secretary  of  the  Board  of  j-ss. 
"  Regents  of  the  University  ) 

"I,  David  Murray,  Secretary  of  the  Board  of  Regents  of  the  University  of 
'  the  State  of  New  York,  do  hereby  certify,  that  the  foregoing  is  a  true  and 
'  correct  transcript  of  a  law,  entered  on  pages  51,  52,  53  and  54  of  a  volume 
'  called  '  Dongan's  Laws  1683,  1684'  (inner  title  'The  Duke  of  Yorke's  Charter 
'  of  Liberties  and  Privileges  to  the  Inhabitants  of  New  York  anno  1683  with 
'Acts  of  the  Assembly  of  that  year  and  the  year  1684 '),  deposited  in  the 


38 


"Manuscript   Department  of  the  State  Library   under  Cliap.   120,  Laws  of 
"  1881, — aud  of  the  whole  thereof. 

'  Witness  my  Band  and  the  seal  <>f  said  Board  of  Regents  at  Albany  this 
"  10th  day  of  January,  1885. 

"  David  Mukray, 

"  Secretary." 
********* 

This  marriage  law  of  1684  was  assented  to  by  Governor 
Dongan,  and  received  the  confirmation  of  the  Duke,  and 
brings  specific  royal  orders,  or  legislation,  on  the  subject 
of  marriage,  down  to  the  date  of  the  death  of  Charles  II., 
and  again  precluded,  up  to  that  time,  the  intrusion  of  the 
English  Common  Law,  or  any  other  law,  on  that  subject. 

The  new  King,  James  II.,  issued  a  new  commission  to 
Governor  Dongan  and  new  instructions,  dated  May  29th, 
1686,  wherein,  among  other  things,  the  Charter  passed  by 
the  late  Assembly  was  repealed  and  declared  void,  but  "  all 
"  other  laws,  statutes  and  ordinances  already  made  within 
--  our  said  Province  of  New  York  shall  continue  and  be  in 
••  full  force  and  vigor  so  far  forth  as  they  do  not  in  any 
••  wise  contradict,  impeach  or  derogate  from  this  commis- 
••  sion  or  the  orders  and  instructions  herewith  given  you, 
"  till  you  shall  with  the  advice  of  our  Council  pass  other 
"  laws  in  our  name  for  the  good  government  of  our  said 
■■  province,  which  you  are  to  do  with  all  convenient  Bpeed." 
By  these  instructions  all  statute  laws  and  ordinances,  made 
within  the  province,  were  to  be  transmitted  to  the  King, 
and  the  Committee  for  Trade  and  Foreign  Plantations, 
within  three  months  or  sooner  after  their  enactment,  and 
all  of  them  disallowed  and  not  approved  by  the  King  shall 
thenceforth  cease  and  become  void. 

A  second  Assembly  met  on  November  3d,  L685,  but  on 
September  4th,  1680,  it  was  prorogued  by  Governor  Dongan. 
and  thereafter  the  Governor  and  Council,  by  orders  in 
council,  became  the  only  political  power  in  the  colony, 
excepting,  of  course,  the  British  Parliament  when  the 
colony  was  expressly  named  in  its  enactments. 

In  October,  1668,  came  the  abdication  of  James  II.  and 
the  ascension  of  William  and  Mary  To  the  throne.     The 


39 


Crown  appointed  Governor  Sloughter  to  be  the  new  Governor 
of  New  York,  authorizing  him,  with  the  advice  and  consent 
of  liis  Conncil,  to  summon  and  call  general  assemblies  of 
the  inhabitants  being  freeholders  therein,  according  to  the 
usage  of  other  English  plantations  in  America,  with  power 
and  authority  to  make  laws,  statutes  and  ordinances  for  the 
public  good  and  welfare  of  the  province,  which  are  to  be  as 
near  as  may  be  agreeable  to  the  laws  and  statutes  of 
England,  provided  that  within  three  months  or  sooner  after 
the  making  thereof  they  be  transmitted  to  London  for  royal 
approval  or  veto,  and  that  so  many  as  are  not  approved  shall 
become  utterly  void  and  of  no  effect.  In  these  instructions 
to  Governor  Sloughter,  the  King  ordained  that  "  to  the  end 
"  the  ecclesiastical  jurisdiction  of  the  said  Bishop  of  Lon- 
"  don  may  take  place  in  that  our  province  as  far  as  con- 
"  veniently  may  be,  we  do  think  fit  that  you  give  all  coun- 
"  tenance  and  encouragement  in  the  exercise  of  the  same 
"  excepting  only  to  the  collating  of  benefices,  granting 
"  licenses  for  marriages,  and  probates  of  wills,  which  we 
kk  have  reserved  to  you  our  Governor,  and  to  the  Com- 
"  mander- in-Chief  for  the  time  being.  You  are  to  take 
"  especial  care  that  a  table  of  marriages  established  by  the 
"  canons  of  the  Church  of  England  be  hung  up  in  all  ortho- 
"  dox  churches,  and  duly  observed." 

The  first  Assembly  under  William  and  Mary  was  con- 
vened at  the  City  of  New  York  on  April  9,  1691,  and 
fifteen  days  thereafter,  as  appears  by  the  Journal  of  that 
Assembly,  the  lower  branch  thereof  passed  a  resolution  in 
respect  to  the  repeal  of  all  laws  consented  to  by  the  General 
Assembly  under  the  Duke  of  York,  and  also  the  several 
ordinances  made  by  the  late  Governors  and  Councils,  which 
resolution  will  be  referred  to  again  hereafter. 

There  was  no  legislative  enactment  or  order  of  the  Colo- 
nial Governor  and  Council,  or  Royal  order  of  the  King,  or 
legislative  enactment  by  the  British  Parliament,  expressly 
relating  to  marriages  in  the  Colony  of  New  York  that  has 
come  under  my  observation  subsequent  to  the  marriage  law 
of  the  colony  of  1684  heretofore  referred  to,  nor  have  I 


40 


been  able  to  find  any  marriage  law  of  the  colony  down  to 
the  year  1112  which  repealed  or  modified  that  legislation 
of  1684. 

In  the  examination  that  I  have  made  of  the  question 
presented  by  the  inquiry  to  which  I  am  now  replying,  and 
in  the  opinion  I  have  formed  thereon,  I  have  not  been 
unmindful  of  a  series  of  American  Judicial  Decisions  by 
the  Federal  Courts  of  the  United  States,  and  by  the  Courts 
of  the  State  of  New  York,  which  have  more  or  less  bearing 
upon  the  questions  presented,  and  especially  the  opinion 
of  the  Supreme  Court  of  the  United  States  in  the  cases  of 
Johnson  vs.  Mcintosh  (8  Wheaton's  Reports,  543)  and 
Martin  vs.  WaddeWs  Lessee  (16  Peters'  Reports.  367)  and 
the  cases  in  the  courts  of  New  York  entitled  The  Canal 
Commissioners  vs.  The  People  (5  Wendell,  424) ;  Bogardus 
v>.  Trinity  Church  (4  Paige's  Chancery  Reports.  178); 
Humbert  vs.  Trinity  Chun-It  (24  Wendell,  587). 

In  Johnson  vs.  Mcintosh  (8  Wheaton's  Reports,  543), 
decided  in  1828,  the  conflict  was  over  the  title  to  land  in 
Illinois,  which  had  been  conveyed  by  the  Indians  in  1773 
and  1775,  and  also  by  a  patent  from  the  Government  of  the 
United  States  on  July  30,  1818,  which  had  purchased  the 
lands  from  the  same  tribe  of  Indians.  Both  litigants 
claimed  a  title  flowing  from  the  same  original  source.  The 
real  question  was  whether  the  United  States  Courts  could 
recognize  the  first-named  title — the  power  of  the  Indians  to 
give  and  of  private  individuals  to  take.  In  the  opinion 
given  by  Chief  Justice  Marshall,  the  Court  begin  by  saying 
that  "discovery"  gave  to  the  nation  making  the  discovery 
"the  sole  right  of  acquiring  the  soil  from  the  natives  and 
establishing  settlements  upon  it."  The  opinion  asserts 
that  Cabot  "discovered  the  of  continent  North  America, 
along  which  he  sailed  as  far  south  as  Virginia;"  that  the 
United  States  adopted  the  rule  that  the  discoverer  had  an 
exclusive  right  to  appropriate  the  lands  occupied  by 
Indians;  that  the  English  title  to  Indian  lands  by  dis- 
covery passed  to  the  United  States,  and,  therefore,  the 
Indian  conveyance  to  individuals  was  worthless  as  against 


41 


the  United  States.  The  land  In  controversy  was  conceded 
to  be  in  a  region  to  which  the  English  acquired  a  title  1>\ 
discovery  and  settlement,  it  being  within  the  patent  of 
.lames  I.,  dated  May  23,  l(H)i).  Neither  the  case  nor  the 
opinion  touches  the  presenl  inquiry,  whether  or  not  the 
Dutch  or  the  English  first  discovered  or  settled  Manhattan 
Island  and  the  Province  of  New  York,  and  whether  the 
transaction  of  L664  was  or  was  not  a  military  conquest. 
On  the  contrary,  the  case  and  opinion  sustain  Dutch  title 
in  New  York  it*  the  Dutch  were  first  discoverers  and 
settlers. 

In  the  course  of  his  opinion  Chief  Justice  Marshall  refers 
specifically  to  the  circumstances  of  the  settlement  of  New 
Netherlands  and  the  acquirement  of  title  therein  by  the 
English  in  10G4.     He  says  : 

"  The  states  of  Holland  also  made  acquisition  in  America  and  sustained 
"  their  right  on  the  common  principle  adopted  by  all  Europe.  They  alleged 
"  as  is  told  by  Smith  in  his  history  of  New  York,  that  Henry  Hudson,  who 

"  sailed  as  they  say  under  the  orders  of  the  East  India  company,  discovered 
"  the  country  from  Delaware  to  the  Hudson  up  which  he  sailed  to  the  43  of 
"  North  Latitude  and  this  country  they  claimed  under  the  title  acquired  by  this 
"  voyage.  Their  first  object  was  commercial  as  appears  by  a  grant  made  to  a 
"company  of  merchants  in  1614  ;  hut  in  1621  the  States  General  made,  as  we 
"are  told  by  Mr.  Smith,  a  grant  of  the  country  to  the  West  India  company  by 
" the  name  of  New  Netherland.  The  claim  of  the  Dutch  was  always  con- 
"  tested  by  the  English,  not  because  they  questioned  the  title  given  by  dis- 
"covery  but  because  they  insisted  on  being  themselves  the  rightful  claimants 
"under  that  title.     Their  pretensions  were  finally  <h<-i<irtl  by  the  sword." 

Here  is  a  positive  declaration  by  Chief  Justice  Marshal, 
and  the  Supreme  Court  of  the  United  States,  that  the  trans- 
act ion  in  New  York  Harbor  in  1664  was,  in  its  legal  conse- 
quences, a  military  conquest. 

The  case  of  Hart  in  et  al.  vs.  Tlie  Lessee  of  William  C.  H. 
Waddell  (16  Peters,  367)  presented  the  question  whether  or 
not  the  grant  from  Charles  II.  to  the  Duke  of  York  of  the 
territory  which  now  forms  the  State  of  New  Jersey  passed 
to  the  Duke  the  soil  under  the  navigable  waters  within  the 
colony  as  one  of  the  royalties  incident  to  the  powers  of 
Government,  including  the  exclusive  use  of  the  waters 
and    the   right   of   fishery   therein.      The   Court  decided 


42 


that     the     public     and    common     right     of    fishing    in 
such  navigable    waters    was    not  given    to   the  grantees. 
The    question    was     presented     to    the    Supreme    Court 
under  a   special    verdict    of  a   jury  in  the   Court  below, 
which  found   specially,  among  other  things,  as   matter  of 
fact,  the  two  grants  of  Charles  II.  dated  June  33, 1064,  and 
June  29,  1 074.     The  Court  was  divided  in  opinion,  two  of 
the  nine  Justices  dissenting  from  the   conclusions  of  the 
majority.     The  opinion  of  the  Court  was  delivered  by  Mr. 
Chief  Justice  Taney,  who  began  by  saying  that  "The  plain- 
"tiff  makes  title  under  the  charters  granted  by  Charles  II. 
"  to  his  brother  the  Duke  of  York  in  1004  and  1074  for  the 
"  purpose  of  enabling  him  to  plant  a  colony  on  this  con- 
tinent.    The  last  mentioned  grant  is  precisely  similar  to 
"the  former  in  every  respect  and  was  made  for  the  purpose 
"of  removing  doubts  which  had  then  arisen  as  to  the  val- 
idity of  the  first     *     *     *    The  point  in  dispute  between 
"the  parties  therefore  depends  on  the  construction   and 
"  legal  effect  of  the  letters  patent  to  the  Duke  of  York  and 
"  of  the  deed  of  surrender  subsequently  made  by  the  pro- 
prietors   *     *     *    The  right  of  the  King  to  make  this 
"grant,  with  all  of  its  prerogatives  and  power  of  govern - 
"  ment,  cannot  at  this  day  be  questioned." 

The  Chief  Justice  then  goes  on  to  reaffirm  the  principles 
governing  Indian  titles,  announced  by  the  Court  in  the  case 
of  Johnson  vs.  Mcintosh. 

It  is  to  be  observed  that  both  grants,  the  one  in  1004  and 
the  other  in  1674,  were  before  the  Court,  and  it  is  to  be 
assumed  that  the  decision  was  based  upon  and  referred  to 
the  subsequent  grant  of  1674. 

In  the  course  of  the  opinion  of  the  Chief  Justice,  and 
after  declaring  that  "the  right  of  the  King  to  make  this 
grant"  of  1674  "  cannot  at  this  day  be  questioned,"  he  says 
that  "in  order  to  enable  us  to  determine  the  nature  and 
"  extent  of  the  interest  which  it  conveyed  to  the  Duke  it 
"  is  proper  to  inquire  into  the  character  of  the  right 
"  claimed  by  the  British  Crown  in  the  country  discovered 
"  by  its  subjects  on  this  continent,  and  the  principles  upon 


43 


"  which  it  was  parcelled  out  and  granted."  Thereupon 
the  Chief  Justice  proceeds  to  say  thai  'The  English  pos- 
sessions in  America  were  not  claimed  by  right  of  conquest 
but  by  right  of  discovery,"  which  proposition  in  its  appli- 
cation to  all  of  the  English  possessions  in  America,  except- 
ing those  acquired  from  Holland  and  from  France  by 
conquest  and  treaty,  was  manifestly  correct ;  but  incorrect 
in  its  application  to  a  portion  of  Canada  and  to  New  York, 
and  therefore  it  is  to  be  assumed  that  the  Chief  Justice  did 
not  refer  to  either  of  the  two.  Indeed,  Chief  Justice  Mar- 
shall, in  the  previous  opinion  of  the  Court  in  Johnson  vs. 
Mcintosh,  had  expressed  the  opinion  that  the  English  title 
to  New  York  was  acquired  "by  the  sword." 

The  case  of  The  Canal  Commissioners  vs.  The  People 
(.")  Wendell,  424),  1830,  presented  the  inquiry  whether  or 
not  the  '"middle  sprout"  in  the  Mohawk  River,  in  New 
fork,  was  embraced  in  a  Patent,  in  the  manor  of  Ren- 
selaewyck,  bearing  date  May  20,  1704.  The  place  in  con- 
troversy was  above  tide  water.  The  discussions  at  bar, 
and  the  opinions  given  by  the  several  members  of  the 
Court  of  Errors,  took  a  large  range  in  respect  to  grants 
bounded  on  rivers  above  tide-water  and  in  respect  to  the 
question  whether  or  not  the  common  law  prevailed  in  New 
York  in  that  relation.  It  was  contended  that  as  New  York 
was  a  Dutch  colony  the  rule  of  the  civil  law  prevailed  in 
New  York,  and  that  the  English  common  law  was  for  that 
reason  never  in  force  on  that  subject  in  the  colony.  Chan 
cellor  Walworth  expressed  the  opinion  that  the  common 
law  did  prevail,  because  "it  is  a  matter  of  history  that  it 
it  was  always  claimed  by  right  of  discovery  and  not  as  a 
conquered  country."  Mr.  Senator  Allan,  another  Judge, 
was  decidedly  of  the  contrary  opinion  in  every  particular. 
Mr.  Senator  Benton  was  of  the  opinion  that  the  common 
law  as  against  civil  law  was  not  before  the  Court,  and  he 
expressed  no  opinion. 

In  1836,  the  same  question  came  again  before  the  Court 
in  17  Wendell,  571,  and  Chancellor  Walworth  reaffirmed 
his  views  at  great  length,  basing  them  on  the  supposition 


44 


that  no  one  seriously  contended  that  the  Roman-Dutch 
law  remained  in  force  after  the  capitulation  by  Governor 
Stuy  vesant  in  1664,  or  seriously  denied  that  the  New  York 
province  was  claimed  by  the  English  by  right  of  discovery, 
or  asserted  an  English  title  was  by  right  of  conquest,  or 
that  any  formal  act  was  needed  after  1664  to  introduce 
the  English  common  law  into  the  colony  as  a  body  of  law. 
Mr.  Senator  Beardsley  asserted  the  contrary  opinion,  and 
Senator  Tracy  asserted  that  the  common  law  doctrine  set 
up  did  not  apply  to  the  question  at  bar. 

In  Bogardus  vs.  Trinity  Chun-It  (4  Paige's  Chancery 
Reports,  178),  Chancellor  Walworth  asserted  again  in  1833 
the  same  opinions  as  in  1830,  and  said  that  in  1705  the 
statutes  of  32  Henry  VIII.,  Ch.  2,  and  21  James  I.,  (Mi.  16, 
constituted  a  part  of  the  law  of  the  New  York  colony, 
because  brought  thither  by  Englishmen,  and  because 
New  York  was  acquired  by  England  by  first  discovery 
and  settlement. 

In  Humbert  vs.  Trinity  Church  (24  Wendell,  587),  de- 
cided in  1840,  the  questions  were  about  the  law  of  inherit- 
ance and  the  effect  of  lapse  of  time,  but  one  of  the  .ludges 
(Furnian)  while  declaring  that  the  case  did  not  call  for  the 
saying,  said  in  passing  that  the  Vice-Chancellcr  was  right 
in  asserting  that  "  the  English  common  law  was,  as  a  mat- 
"  ter  ol*  course,  introduced  into  the  colony  immediately 
••  afterthe  conquest  of  1664." 

In  respect  to  the  value  which  shall  be  given  at  this  day 
to  the  judicial  opinions  and  decisions  of  American  Courts 
wherein  it  is  disclosed  that  those  opinions  and  decisions  are 
based  upon  imperfect  theories  of  fact  then  assumed  by  the 
Court  to  be  perfect,  it  is  proper  to  say  that  until  the  com- 
paratively recent  discoveries  made  by  Mr.  Brodhead  of 
New  York,  the  author  of  "The  History  of  New  York"  in 
two  volumes,  the  tirst  volume  of  which  was  published  in 
1853,  and  the  second  volume  in  1871,  the  current  knowl- 
edge in  the  United  States  of  the  early  colonial  history  of 
what  is  now  the  State  of  New  York  was  defective  in  many 
particulars.     The  first  history  of  New  York  by  Smith  was 


4/5 


published  in   London  in  1767.     An  American  edition  was 

published  in  17!>2.  The  author  was  a  lawyer  in  the  New 
York  colony  and  had  been  engaged  under  appointment  of 
the  New  York  Assembly  in  a  review  and  digest  of  the  laws 
of  the  province,  which  employment  induced  the  prepara- 
tion of  his  history  of  the  colony,  lie  died  ( Ihief  -Justice  of 
Canada,  and  left  behind  him,  in  manuscript,  a  continuation 
of  his  history  of  New  York,  written  by  his  own  hand,  which 
covered  the  period  From  1732  to  1762,  but  it  was  not  pub- 
lished until  after  its  communication  to  the  New  York  His- 
torical Society  in  1824  by  the  son  of  the  author.  The  manu- 
script appeared  in  print  for  the  first  time  in  1826.  It  is 
from  the  narrative  of  events  thus  given  by  Smith  that  have 
largely  come  the  opinions  in  respect  to  the  events  of  1604, 
1674  and  L691,  which  have  been  announced  by  the  historians 
that  followed  him,  and  by  judicial  tribunals  down  to  the 
publication  of  the  hrst  volume  of  Mr.  Brodhead  in  1853,  and 
the  first  volume  of  O'Callaghan's  History  of  New  Nether- 
land  in  1848.  Mr.  Brodhead  was  a  lawyer  by  profession  ; 
he  was  attached  to  the  American  Legation  at  the  Hague,  and 
was  commissioned  by  the  State  of  New  York  to  procure 
original  materials  relating  to  its  early  history.  In  this 
labor  he  spent  more  than  three  years  in  the  archives  of 
England,  Holland  and  France,  and  as  the  result  of  his  labors 
sent  home  sixteen  volumes  of  Dutch  documents  which  he 
had  collected  in  Holland.  If  Chancellors  Kent  and  Wal- 
worth could  have  had  before  them  the  results  of  Mr.  Brod- 
head's  researches,  when  their  opinions  in  the  cases  I  have 
mentioned  were  given,  and  the  results  of  other  modern 
researches,  it  is  to  be  assumed  that  neither  of  them  would 
seriously  have  contended  that  the  foundation  of  the  English 
colony  in  New  York  rested  on  discovery  made  by  Cabot  in 
1497,  and  not  on  military  conquest  accomplished  in  1664. 

I  have  not  been  unmindful  of  a  decision  in  the  case  of 
Jackson  et  aZ.  vs.  Gilchrist  (15  Johnston's  Reports,  89), 
made  in  1818  by  the  Supreme  Court  of  the  State  of  New 
York,  a  court  inferior  in  jurisdiction  and  subordinate  in 
authority  to  the  Court  of  Appeals  of  the  same  State.     The 


46 


question  in  that  case  was  whether  a  deed  of  land  purport- 
ing to  have  been  made  by  husband  and  wife  had  been 
iw  acknowledged  "  by  the  wife  so  as  legally  to  divest  her 
title  thereto.  There  appears  to  have  been  a  diversity  of 
opinions  on  the  bench  "how  far  the  common  law  mode  of 
proceeding  was  at  that  time  in  force  in  New  York,"  when 
the  acknowledgment  was  made,  and  that  question  was  left 
undecided  by  the  Court.  The  Judge  who  announced  the 
decision  of  the  Court  gave  it,  however,  as  his  own  opinion, 
that  "the  common  law  in  this  respect  had  never  been 
adopted  with  us,"  but  the  decision  turned  on  a  Colonial 
Act  of  1771.  It  had  been  argued  at  bar  that  this  Act  of 
1771  was  in  conflict  witli  the  Duke  of  York's  Charter  of 
1683,  and  that  argument  seems  to  have  suggested,  or 
required,  a  consideration  of  the  inquiry  whether  or  not  that 
Charter  of  1683  was  in  force  in  1771.  Upon  that  point  the 
Court  said  : 

"I  believe  it  lias  been  the  general,  if  not  the  received,  opinion  that  this 
"  charter  was  not  in  force  here  after  the  revolution  of  1688 

An  inference  has  here  and  there  been  drawn,  by  his- 
torians rather  than  lawyers,  from  this  casual  remark  of  the 
Court,  that  the  charter  referred  to  came  to  an  end  by  reason 
of  the  abdication  of  James  II.  and  the  coronation  of  Will- 
iam and  Mary.  Such  probably  could  not  have  been  the 
opinion  of  the  Court  if  its  attention  had  been  drawn  to  the 
instructions  given  by  .lames  II.  to  Governor  Dongan  on 
May  29th,  L686,  in  which  the  King  said : 

"  And  whereas  we  have  been  presented  with  a  bill  or  charter  passed  in  the 
"late  Assembly  of  New  York  containing  several  franchises,  privileges,  and 
"  immunities  mentioned  to  be  granted  to  the  inhabitants  of  our  said  province, 
"you  are  to  declare  our  will  and  pleasure  thai  the  said  bill  or  charter  of  Iran 
"  chiscs  be  forthwith  repealed  and  disallowed  as  the  same  is  hereby  repealed, 
"determined  and  made  void." 

It  was  for  that  reason  the  opinion  "  had  been  universally 
received"  that  the  charter  of  1683  "was  not  in  force  here 
after  the  revolution  of  1688." 

The  opinion  of  the  Court  then  refers  to.  ami  quotes,  ap- 
parently by  way  of  showin.u  that  "  the  universally  received 
opinion"  in  respect  to  the  charter  of  1683  was  correct,  the 


47 


record  of  the  proceedings  of  the  General  Assembly  of  New 
York,  convened  by  Governor  Sloughter  under  William  and 
Mary,  fchal  mel  in  April,  L691.  Tin's  was  the  firaf  Assembly 
that  had  been  convened  in  the  colony  under  the  direcl 
authority  of  the  English  King  and  Crown,  li  came  to- 
gether  under  circumstances  of  exceptional  popular  emotion 
and  partisan  strife,  growing  out  of  the  doings  of  Leisler, 
who  had  usurped  colonial  authority  before  the  arrival  oi 
Governor  Sloughter.  The  members  of  this  Assembly  ap- 
pear to  have  been  bitterly  hostile  in  every  sense  to  Leisler 
and  his  doings.  The  Assembly  resolved  unanimously  that 
Leisler' S  acts  had  been  tumultuous,  illegal,  arbitrary. 
destructive  and  rebellious.  The  Assembly  presented  to 
Governor  Sloughter  an  address  which  declared  that  :  "In 
"our  hearts  we  do  abhor  and  detest  all  the  rebellious, 
"  arbitrary  and  illegal  proceedings  of  the  late  usurpers  of 
"their  Majesty's  authority  over  this  province."  A  few 
days  afterward  the  Assembly  adopted  another  extraordin- 
ary resolution  in  which,  after  reciting  by  way  of  preamble, 
that  "upon  an  information  brought  into  this  house  by 
"  several  members  of  the  house  declaring  that  the  several 
"  laws  made  formerly  by  the  General  Assembly  and  his  late 
"  Royal  Highness  James,  Duke  of  York,  etc.,  and  also  the 
"  several  ordinances  or  reputed  laws  made  by  the  preceding 
•( Governors  and  Councils  for  the  rule  of  their  Majesty's 
"  subjects  within  this  province  are  reported  amongst  the 
"  people  to  be  still  in  force  ;" 

"Therefore,  Resolved,  Nemim  Contra  Diccente,  That  all  the  laws  consented 
"  to  by  the  General  Assembly  under  .Tunics,  Duke  of  York,  and  the  liberties 
"  and  privileges  therein  contained  granted  to  tlie  people  and  declared  to  be 
"  their  rights,  not  being  observed  and  not  ratified  and  approved  by  his  Royal 
"  Highness  nor  the  late  King,  are  null,  void  and  of  none  effect  Anil  also  the 
"  several  ordinances  made  by  the  late  Governor  and  Council  being  contrary  to 
"  the  Constitution  of  England  and  the  practice  of  the  Government  of  their 
"  Majesty's  other  plantations  in  America  are  likewise  null,  void  and  of  none 
"  effect  nor  force  within  this  province." 

It  will  be  observed  that  the  first  branch  of  the  resolution 
simply  declares  in  effect  that  all  the  laws  of  the  General 
Assembly  convened  under  the  Duke  of  York,  including  the 


48 


charter  which  .had  not  been  ratified  and  approved  by  his 
Royal  Highness  nor  the  late  King,  are  "null,  void  and  of 
none  effect."  That  was  only  a  declaration  of  the  legal  fact. 
The  second  branch  of  the  resolution,  however,  relates  not 
to  the  charter  but  to  "several  Ordinances''  which  the  re- 
solution asserts  were  null  and  void,  because  unconstitu- 
tional, and  in  conflict  with  colonial  usage.  That  branch  of 
the  resolution  will  be  referred  to  hereafter,  but  it  has  no 
bearing  on  the  charter  of  1683,  which  was  vetoed  by  the 
King  in  1686. 
The  opinion  of  the  Court  in  Jackson  vs.  Gilchrist  adds : 

"  We  do  not  tint]  this  charter  published  in  any  edition  of  the  colonial  laws 
"  as  we  most  undoubtedly  should  had  it  been  considered  in  force." 

It  was.  in  fact,  immaterial  whether  or  not  this  charter 
had  been  published  in  any  edition  of  the  colonial  laws,  in- 
asmuch as  no  mere  publication  by  a  compiler  of  the  laws 
could  have  given  it  validity,  if  it  fell  by  the  veto  of  the 
King. 

The  opinion  of  the  Court  also  says  that  the  General 
Assembly  of  1791,  after  making  the  foregoing  declaration 
of  nullity,  enacted  another  charter,  which,  in  the  view  of 
the  Court,  contained  all  that  was  intended  to  be  in  force. 
But  the  allusion  to  the  second  charter  was  irrelevant,  inas- 
much as  it  was  vetoed  and  annulled  by  the  King  in  10!)?. 
The  Court,  however,  concludes,  that  in  171 1,  which  was 
the  date  of  the  "acknowledgment  "  in  question,  there  was 
no  statute  regulation  of  acknowledgments  then  in  force. 

I  am  aware  that  an  inference  has  here  and  there  been 
drawn,  chiefly  by  historians,  from  the  remark,  in  Jackson 
vs.  Gilchrist,  in  respect  to  the  charter  of  1683,  that  all  the 
statutes,  laws  and  ordinances  of  the  Colony  of  New  York 
enacted  or  declared  under  English  authority  subsequently 
to  1604  fell  in  consequence  of  the  revolution  of  1088.  The 
lit  si  suggestion  of  such  an  inference  was  made,  1  think,  by 
Smith,  in  a  note  to  his  "History  of  the  Province  of  New 
York,"  in  which  he  says  : 

"  All  laws  made  here  antecedent  to  this  period  (1691)  are  disregarded  both 
"  by  the  Legislatures  and  the   Courts   of  Law.     In  the  collection  of  our  acts 


49 


"  published  in  1752,  the  compilers  were  directed  to  begin  :ii  this  Assembly. 
••  The  validity  of  the  old  grants  of  the  powers  of  govei  amcnl  in  several  A  mer 
"  lean  colonies  is  very  much  doubled  in  this  province."  (See  American  Edi- 
tion of  Smith's  History;  Philadelphia,  April  -2,  1793,  p 

I  am  quite  unable  in  perceive  how  or  why  the  abdication 
of  James  11.  and  the  coronation  of  William  and  Mary 
should  have  produced  such  a  tremendous  legal  consequence 
in  the  Colony  of  New  York.  Certainly  the  new  king  by  a 
Royal  Order  continued  in  power  the  colonial  officers  then 
exercising  authority  in  the  province  until  his  further  inten- 
tion should  be  manifested,  and  it  would  be  quite  absurd,  it 
seems  to  me.  to  assume  that  those  officers  were  continued 
in  power  with  no  statutes  or  ordinances  to  prescribe  the 
rights  to  lie  held  and  the  duties  to  be  performed  in  the 
Colony  of  New  York  by  such  officers.  That  the  remark  of 
the  Judge  giving  the  opinion  of  the  Court  in  Jackson  vs. 
Gilchrist  was  not  law  at  the  time  and  is  not  accepted  as 
law  in  New  York  may  be  inferred  from  the  opinion  of 
Judge  Furman,  expressed  in  the  case  of  Humbert  vs. 
Trin  it  a  Church  (24  Wendell,  587),  sitting  in  the  Court  of 
Errors,  which  is  a  tribunal  of  final  appeal  and  jurisdiction. 
He  said  : 

"There  lias  been  considerable  anxiety  manifi  sled  in  the  course  of  this 
"  argument  to  show  that  there  were  no  colonial  laws  previous  to  the  enactment 
"  of  1691  or  that  they  were  of  a  loose  and  vague  description  as  lo  merit  no 
"  attention  and  that  even  those  had  probably  been  lost  or  destroyed:  and  for 
•  that  purpose  'J  Graham  Hist.  U.  S.  325  and  Smith  Hist.  X.  Y.  4,2  124,  have 
"  been  cited.  It  is  really  strange  how  such  matters  get  into  histories  and  pass 
"from  one  age  to  another  without  contradiction.  The  truth  is  thai  those' 
"  laws  of  the  colony  of  New  York,  enacted  in  the  year  1683,  l<i*-I  and  1685  are 
"  generally  as  well  worthy  of  attention  as  any  which  have  been  passed  since, 
"  but  never  having  been  printed  the  public  knew  little  or  nothing  about  them, 
"  and  they  are  all  now  presi  rved  in  the  office  of  Secretary  of  Stale." 

That  opinion  was  delivered  in  1840. 

In  1863,  and  in  the  case  of  Van  Winkle  vs.  Constantine 
ilo  New  York  Keports,  424),  the  Court  of  Appeals,  a  tribu- 
nal of  final  jurisdiction,  said  that  the  resolution  of  the 
colonial  Assembly  of  1691  "was  not  intended  as  a  repeal 
k'  but  as  a  statement  of  the  fact  that  they  had  been  disal- 
"  lowed  or  discontinued  by  the  late  Duke   of  York  and 


so 


"  were  therefore  not  binding  upon  the  people  of  the 
"  colony." 

The  question  of  the  effect  of  the  resolution  of  1691  only 
becomes  relevant  to  the  inquiry  now  submitted  to  me  by 
reason  of  its  bearing  upon  the  "Bill  concerning  Marriages" 
enacted  by  the  colonial  Assembly  in  1684  and  the  sugges- 
tion here  and  there  made  that  this  marriage  law  was  also 
repealed  by  the  resolution  of  1691.  In  regard  to  that  sug- 
gestion, it  is  to  be  said  that  the  first  branch  of  the  resolu- 
tion only  attempts  and  purports  to  declare  null  and  void 
such  laws  as  have  been  (1)  consented  to  by  the  General 
Assembly  under  James,  Duke  of  York,  and  (2)  not  ratified 
and  approved  by  his  Royal  Highness  nor  the  late  King.  But 
1  have  not  been  able  to  discover  any  evidence,  and  I  believe 
there  is  no  evidence,  that  the  "Bill  concerning  Marriages" 
was  either  vetoed,  or  was  "not  ratified  and  approved,  by 
his  Royal  Highness  nor  the  late  King,"  and  so,  for  that 
reason,  the  resolution  of  1691  did  not  touch  that  marriage 
law.  The  second  branch  of  the  resolution  of  1691  only 
refers  to  and  declares  null  and  void  "  the  several  Ordinances 
"  made  by  the  late  Governors  and  Councils  being  contrary 
"  to  the  constitution  of  England  and  the  practice  of  the 
"  government  of  their  Majesty's  other  plantations  in  Amer- 
"  ica."  The  "Bill  concerning  Marriages"  was  not  an 
ordinance  made  by  the  late  Governors  and  Councils,  but 
was  a  legal  statute  enactment.  It  was  not  unconstitutional, 
nor  in  violation  of  colonial  usage,  and,  for  this  second 
reason,  therefore,  this  marriage  law  was  not  touched  by  the 
resolution  of  1791. 

But  there  is  another  consideration  which  seems  to  show 
conclusively  that  the  resolution  of  1791  cannot  have  the 
effect  of  repealing  the  marriage  law  of  1684. 

In  the  ■•  Colonial  History  of  New  York,  London  Docu- 
ments, 1788  L782,  Volnme  VIII.,"  there  is  to  be  found  a 
copy  of  the  report  to  the  Earl  of  Dartmouth,  dated  ,Iune 
11,  1774,  by  Governor  Tryoi  in  obedience  to  the  King's 
commands,  which  exhibits  the  opinions  entertained  by  the 
then  Captain-General  and  Governor-in-Chief  of  the  colony 


51 


concerning  the  general  character  and  condition  of  the 
political  affairs  of  the  colony  after  the  powers  of  govern- 
ment therein  were  completely  rested  in  the  Duke,  of  York 
by  the  treaty  of  Westminster  and  the  patent  of  1(374.     He 

says  : 

"  By  the  Grants  of  this  Province  and  other  Territories  to  the  Duke  of 
fork  in  HiiiJ  and  1674,  the  powers  of  Government  were  vested  in  him, 

•  and  were  accordingly  exercised  by  his  Governors  until  he  ascended  the 

■  Throne  when   his   Rights  as  Proprietor  merged  in   hi*  Crown,  and  Ihe 

•  Province  ceased  to  be  a  Charter  Government.     From  that  time  it  lias  been 

•  a  Royal  Government,  and  in  its  constitution  nearly  resembles  that  of  Great 

•  Brit  on  and   the  other  Royal  Governments  in  America.    The  Governor  is 

•  appointed  by  the  King  during  his  Royal  Will  and  pleasure  by  Letters 
'  pattent  under  the  Great  Seal  of  Great  Britain  with  very  ample  powers. — He 
'  has  a  Council  in  Imitation  of   His  Majesty's  Privy  Council. — This  Board 

•  when  full  consists  of  Twelve  Members  who  are  also  appointed  by  the 
'  Crown  daring  Will  and  Pleasure  ;  and  three  of  whom  make  a  Quorum. — 
'  The  Province  enjoys  a  Legislative  Body  which  consists  of  the  Governor,  as 
'  the  King's  Representative  ;  the  Council  in  place  of  the  House  of  Lords,  and 

■  the  Representatives  of  the  People,  who  are  chosen  as  in  England  ;  of  these 
'  the  City  of  New  York  sends  four. — All  the  other  Counties  (except  the  new 

•  Counties  of  Charlotte  and  Gloucester  as  yet  not  represented)  send  Two. — 
'  The  Borough  of  Westchester,  The  Township  of  Schenectady  and  the  three 
'  manors  of  Renselaerswyck,  Livingston  and  Cortlandt  cacti  send  one  ;  in  the 
'  whole  forming  a  Body  of  Thirty-one  Representatives.     The  Governor  by  his 

•  Commission  is  authorized  to  convene  them  with  the  advice  of  the  Council, 

•  and  adjourn,  prorogue  or  dissolve  the  General  Assembly  as  he  shall  judge 
necessary.  This  Body  has  not  power  to  make  any  laws  repugnant  to  the 
Laws  and  statutes  of  Great  Britain.  All  Laws  proposed  to  be  made  by  this 
Provincial    Legislature,    passed    thro'   each  of  the  Houses  of   Council  and 

'  Assembly,  as  Bills  do  thro'  the  House  of  Commons  and  House  of  Lords 
'  in  England,  and  the  Governor  has  a  Negative  voice  in  the  making  and 
'  passing  all  such  Laws.  Every  law  so  passed  is  to  be  transmitted  to  his 
'  Majesty  under  the  Great  Seal  of  the  Province,  within  three  Mouths  or 
'  sooner  after  the  making  thereof  and  a  Duplicate  by  the  next  Conveyance, 
'  in  order  to  be  approved  or  disallowed  by  his  Majesty  ;  And  if  his  Majesty 
'  shall  disallow  any  such  Law  and  the  same  is  signified  to  the  Governor 
'  under  the  Royal  Sign  Manual  or  by  Order  of  his  Majesty's  Privy  Council, 
'  from  thenceforth  such  law  becomes  utterly  void. — A  law  of  the  Province 
'  has  limited  the  duration  of  the  Assembly  to  seven  years.  The  Common 
'  Law  of  England  is  considered  as  the  fundamental  law  of  the  Proviuce,  and 
'  it  is  the  received  Doctrine  that  all  the  Statutes  (not  Local  in  their  Nature, 
'  and  which  can  be  fitly  applied  to  the  circumstances  of  the  Colony)  enacted 
'  before  the  Province  had  a  Legislature,  are  binding  upon  the  Colony  ;  but 
'  that  statutes  passed  since  do  not  affect  the  colony,  unless,  by  being  specially 
'  ntimed,  such  appears  to  be  the  Intention  of  the  British  Legislature." 


52 


This  exhibition  of  the  rule  and  practice  which  controlled 
the  making  and  repealing  of  laws  in  the  colony  may  be 
fairly  assumed  to  have  prevailed  in  1791,  and  if  that  be  so, 
the  resolution  of  that  year  was  nothing  more  than  a  mere 
declaration  of  the  wishes  or  opinions  of  one  branch  of  the 
legislative  body,  not  concurred  in  by  the  other  branch  or 
approved  by  the  Governor.  I  have  not  been  able  to  rind 
even  an  indication,  and  do  not  believe  that  any  exists, 
showing  that  this  extraordinary  resolution  of  1691  was 
concurred  in  by  the  upper  house  of  Council,  or  approved 
by  the  Governor,  and  if  that  be  so  then  the  resolution  had 
no  legal  effect  as  a  repealing  enactment. 

It  will  be  observed  that  Governor  Try  on,  in  his  Report, 
says  that : 

"  The  common  law  of  England  is  considered  as  the  fundamental  law  of 
"  the  province,  and  it  is  the  received  doctrine  that  all  the  statutes  (not  local  in 
"  their  nature  and  which  can  he  fitly  applied  to  tin-  circumstances  of  the  e<>l- 
"  ony),  enacted  before  the  province  had  a  legislature  are  binding  upon  the  co|- 
"  ony  ;  but  that  statutes  passed  since  do  not  affect  the  colony  Unless  by  being 
"  specially  named,  such  appears  to  he  the  intention  of  the  British  Legislature." 

To  which  laws,  and  to  what  laws  in  particular  did  Gov- 
ernor Tryon,  in  1774,  intend  to  refer  by  the  phrase,  "the 
common  law  of  England."  That  phrase  has  been,  and  is, 
used  in  many  different  senses.  Blackstone  tells  us  in  his 
Commentaries  (the  first  volume  of  which  was  published  in 
17(i.').  and  the  second  volume  three  years  later,  which  was 
very  near  the  year  to  which  we  are  referring) : 

"The  municipal  law  of  England,  or  the  rule  of  civil  conduct  prescribed  to 
"  the  Inhabitant*  of  this  Kingdom,  may,  with  sullieient  propriety,  be  divided 
"  into  two  kinds  ;  the  In  mm  sciipta,  the  unwritten  law,  or  common  law  ;  and 
■'  the  l<-r  teripta,  the  written  or  statute  law.  *  *  *  This  unwritten,  or  com- 
'•  mon  law,  is  properly  distinguishable  into  three  kinds  :  (1.)  General  customs, 
"  which  are  the  universal  rule  of  the  whole  kingdom,  and  form  the  common 
'•  law  in  its  stricter  and  more  usual  signification.  (2  )  Particular  cu-toms, 
"  which  for  the  most  part  affect  only  the  inhabitants  of  particular  districts. 
"  (3.)  Certain  particular  laws,  which  by  custom  are  adopted  and  used  by  some 
"  particular  Courts  of  pretty  general  and  extensive  jurisdiction.  *  *  *  Hut 
"  here  a  very  natural  and  very  material  question  arises.  How  are  these  CUS- 
"  toms  or  maxims  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
"  mined  '.'  The  answer  is,  by  the  Judges  iu  the  several  Courts  of  Justice. 
"  They  arc  the  depositaries  of  the  law,  or  living  oracles,  who  must  decide  in 


53 


"  all  cases  of  doubt,  and  who  are  bound  by  an  oath,  to  decide  according  to 
"  the  law  of  the  land." 

As  Blackstone  makes  a  sharp  distinction  between  the 
common  law,  which  is  to  be  found  in  the  decisions  of  the 
judges,  and  the  statute  law,  which  is  to  be  found  in  the 
books  of  statutes,  it  cannot  have  been  in  the  mind  of  Gov- 
ernor Tryon  to  use  the  phrase  in  the  sense  expressed  by 
Blackstone,  inasmuch  as  the  Governor  declared  it  to  be 
"  received  doctrine  that  all  the  statutes,  not  local  in  their 
"  nature,  and  which  can  be  fitly  applied  to  the  circum- 
"  stances  of  the  Colony,  enacted  before  the  province  had  a 
"  legislature,  are  binding  upon  the  Colony,"  unless  he 
intended  to  say  that  those  statutes  were  only  considered  as 
a  definition  and  expression  of  the  common  law.  .And  the 
Governor  adds  that  not  all  those  English  statutes  wrere 
considered  as  "binding  upon  the  Colony,"  but  only  such 
as  "can  be  fitly  applied  to  the  circumstances  of  the 
"  Colony." 

But  where  shall  wre  look  to  ascertain  which  of  the  stat- 
utes were  considered  as  "fitly"  applicable?  In  Van  Nest 
v.  Packard  (2  Peters,  144)  the  Supreme  Court  of  the 
United  States  says  : 

"The  common  law  of  England  is  not  to  be  taken  in  all  respects  to  be  that 
"of  America.  Our  ancestors  brought  with  them  its  general  principles,  and 
"  claimed  it  as  their  birthright  ;  but  they  brought  with  them  and  adopted 
■'  only  that  portion  which  was  applicabli  to  their  condition." 

In  Cathcart  v.  Robinson  (5  Peters,  280)  the  same  Court 
says  : 

"The  acts  of  Parliament  passed  after  the  settlement  of  a  colony  were  not 
"  in  force  therein  unless  made  so  by  express  words  or  by  adoption." 

The  principles  announced  by  the  Supreme  Court  of  the 
United  States  must  be  taken,  I  think,  to  refer  to  a  planted 
colony  and  not  to  a  conquered  colony,  inasmuch  as  the 
phrase  "  settlement  of  a  colony  "  cannot  be  predicated  of  a 
conquered  colony.  If  subjects  of  the  British  Crown  were 
to  discover  to-day  in  the  Pacific  Ocean,  and  to  take  posses- 
sion of,  an  uninhabited  island,  rich  in  mines  or  other  com- 
mercial  treasures,   and  English    settlers  were    rapidly  to 


54 


occupy  the  region,  in  which  no  law  existed,  the  rule  would 
undoubtedly  be  that  those  settlers  brought  with  them,  and 
introduced  into  the  new  settlement,  so  much  of  English 
law  as,  by  general  consent,  was  deemed  applicable  to  their 
conditions.  The  law  thus  brought  and  introduced  would 
be,  not  merely  the  unwritten  law  and  immemorial  customs 
of  England,  but  the  written  or  statute  law  as  well.  But  if, 
on  the  other  hand.  England  were  to-day  to  conquer  from 
Spain  the  Island  of  Cuba,  and  the  conquest  were  ratified 
by  treaty  cession,  and  subjects  of  the  British  Crown  were 
thereafter  to  arrive  and  settle  in  Cuba,  it  would  not  be  cor- 
rect to  say  that  those  settlers  could  in  the  same  sense  bring 
with  them,  and  introduce  by  their  arrival,  English  law.  In 
the  last-named  case,  any  new  law  must  be  introduced  by  the 
specific  orders  or  the  legislation  of  the  conquering  power 
acting  as  a  Government.  In  the  case  of  planted  English 
colonies  the  term.  "  common  law,"  as  a  rule  for  the  govern- 
ment of  individuals,  in  the  sense  now  under  consideration, 
must  be  taken  as  referring  to  a  particular  date,  together 
with  statute  laws  in  force  at  the  time  of  the  emigration, 
which  (and  here  is  an  important  qualification)  the  settlers 
deemed  applicable  to  their  condition.  Chancellor  Kent,  in 
ih.'  first  volume  of  his  Commentaries  (p.  343),  says  of  the 
common  law : 

"It  is  the  common  jurisprudence  of  the  United  States,  and  was  brought 
"  with  them  as  colonies  from  Eogland  ami  as  established  here  to  far  as  it  was 
"adapted  to  our  institutions  and  circumstances.  *  *  *  It  fills  up  every 
"  interstice  and  occupies  every  wide  space  which  the  statute  law  cannot 
"  occupy." 

The  true  inquiry,  therefore,  in  respect  to  the  ma rriage 
laws  in  force  in  the  New  York  Colony  in  1772,  must  be, 
first,  whether  there  was  any  "interstice"  and  "wide 
space"  in  respect  to  the  institution  of  marriage  which  was 
then  not  occupied  by  statute  laws  ;  and,  secondly,  if  any 
such  '-interstice"  and  "wide  space"  existed,  then  what 
provision  of  the  common  law  regulating  marriage  was,  by 
the  colonists,  deemed  suitable  and  applicable  thereto,  in 
1772.     The  test  in   regard  to  the  common  law  is  not  the 


56 


common  law  of  England,  but  the  common  law  of  the  Colony 
in  1772,  if  the  two  were  unlike.     In  England  and  in  the 

United  States  one  looks  for  evidence  of  the  existence  and 
control  of  a  common  law  at  a  particular  date,  to  declaratory 
statutes,  to  the  commentaries  of  learned  jurists,  and  to  the 
decisions  of  the  Courts;  but  such  a  test  in  the  Colony  of 
New  York  in  1772  is  certainly  not  easy  of  application.  In- 
deed, on  the  subject  of  marriage  it  is  difficult  to-day  to 
ascertain  what  was  the  common  law  of  England  at  any  par- 
ticular date,  as  the  case  of  Regina  r.  Mills  (10  CI.  &  Fin., 
655)  sufficiently  discloses.  I  can  but  think  that  "the  fun- 
damental law  "  of  the  Colony  of  New  York  in  1772  and  in 
1774  was  made  up  of:  (1)  So  much  of  the  Dutch  law  as 
was  unrepealed  and  continued  in  force;  (2)  so  much  of  the 
English  common  law  as  had  been  established  after  the  con- 
quest in  l()f!4;  (3)  so  much  of  the  English  Parliamentary 
statutes  as  had  been  enacted  and  specially  made  ap- 
plicable; and  (4i  the  colonial  statutes  legally  enacted 
and  sanctioned  by  the  Crown.  A  great  deal  of  the  con- 
fusion of  thought  and  inexactness  of  expression  in  deal 
ing  with  the  early  colonial  law  of  New  York  may  have 
grown  out  of  a  failure  to  adequately  discriminate  be- 
tween planted  colonies  and  conquered  colonies,  and  a  failure 
to  appreciate  the  fact  that  during  half  a  century  the  Prov- 
ince of  New  York  was  governed  and  controlled  by  Holland, 
which  had  a  common  law  of  its  own  as  distinct  and  well 
recognized  as  was  the  common  law  of  England. 

That  there  was  a  common  law  which  may  be  generally 
described  as  "English  common  law"  prevailing  on  certain 
subjects,  and  regulating  certain  transactions  in  the  Colony 
of  New  York  in  1772,  cannot  be  denied.  Nor,  on  the  other 
hand,  can  it  be  denied  that,  in  certain  other  matters,  there 
was  another  and  a  different  law.  The  English  common  law- 
has  not  prevailed,  and  does  not  prevail  everywhere  in  the 
United  States,  as  is  seen  in  the  case  of  Louisiana,  which, 
having  been  acquired  by  treaty  from  France,  presents  some 
analogies  to  the  circumstances  of  the  acquirement  by 
England  of  the  Colony  of  New  Yrork  from  Holland.     That 


56 


some  portion  of  the  English  common  law  did  exist  in  the 
Colony  of  New  York  is  recognized  in  the  first  Constitution 
of  the  State  after  it  became  independent,  which  declares,  in 
effect,  that  such  portion  of  that  common  law  as  was  in  use 
in  the  colony  at  the  date  of  the  battle  of  Lexington,  April 
19,  1775,  should  be  the  law  of  the  State,  unless  modified  by 
some  statute  or  constitutional  provision.  But  that  clause 
in  the  State  Constitution  will  afford  little  aid  in  ascertaining 
whether,  in  1772,  the  institution  of  marriage  was  or  was  not 
regulated  by  a  specific  statute  applicable  thereto.  That 
some  portion  of  the  Dutch  common  law  was  in  force  in  New 
York  at  the  time  of  the  adoption  of  the  Constitution  is  to 
be  inferred  from  the  case  of  Dunham  v.  Williams  (37  N. 
Y.  Rep.,  251),  in  which  the  Court  of  Appeals,  in  18G7,  de- 
cided in  effect  that  the  title  to  a  certain  roadway  was  gov- 
erned, not  by  the  English  common  law,  but  by  the  Dutch 
common  law.     The  Court  say: 

'•  The  highway  was  ancient.  It  was  laid  out  when  New  York  was  a 
••  province  of  the  States  General,  and  when  it  was  in  the  possession  of  the 
•■  original  settlers  and  subject  to  the  dominion  and  laws  of  the  Dutch  Govern- 
'■  ment.  *  *  *  The  highway  having  been  laid  out  prior  to  the  capitula- 
'•  tion,  the  title  of  the  Government  to  the  roadbed  was  absolute.  This  was 
"  the  rule  of  the  civil  law  which  prevailed  in  all  the  colonial  provinces  of 
"  the  Dutch." 

There  have  been  other  questions  adjudicated  by  the  New 
York  Courts  which  uphold  the  contention  that,  in  regard 
to  certain  matters,  the  Dutch  law  prescribes  the  rule  of 
decision  in  New  York  at  the  present  time. 

It  could  not  well  but  be  that  when  the  sovereignty  of 
Holland  over  the  Province  of  New  York  was  exchanged 
for  the  sovereignty  of  England,  some  portion  of  the  then 
English  common  law  would  be  immediately  introduced. 
Brodhead  tells  us  (Vol.  I.  History  of  New  York,  p.  163) 
that  "the  will  of  the  West  India  Company,  as  expressed 
"  in  instructions  or  declared  in  ordinances,  was  the 
•  supreme  law  of  New  York.  In  cases  not  thus  specifi- 
"  cally  provided  for,  the  civil  law,  and  the  statutes,  edicts 
"  and  customs  of  the  fatherland  were  to  be  paramount. 
"  To  assist  the  Director  a  Council  was  appointed,  which 


57 


"  was  invested  with  ;ill  local  legislative,  judicial  and 
"  executive  powers,  subject  to  the  supervision  and  appel- 
••  late  jurisdiction  of  the  Chamber  at  Amsterdam.  Crim- 
"  inal  justice  was    administered  by  the  Council   to  the 

"extent  of  tine  and  imprisonment,  but  not  to  the  taking 
"away  of  life.     If  any  person  was  capitally  convicted, 

"  •  he  must  be  suit,  with  his  sentence.'  to  Holland." 

It  is  to  be  assumed  that  up  to  1064  the  language  used  in 
courts  of  justice,  as  well  as  in  statutes,  was  the  Dutch. 
After  the  conquest  and.  surrender,  the  Duke  of  York  was 
authorized  by  the  King  to  make  and  establish  laws  and 
magistracy  "lit  and  necessary  for  and  concerning  the 
"  government  of*  the  territories  and  islands  aforesaid,  so 
••always  as  the  same  be  not  contrary  to  the  laws  and 
"  statutes  of  this  our  realm  of  England,  but  as  near  as  may 
"be  agreeable  thereunto."  The  Duke's  Laws,  or  the 
Nicolls'  Code  of  1064,  was  the  first  successful  attempt  at 
Codification,  on  a  large  scale,  attempted  in  America.  That 
Code,  as  published  in  the  first  volume  of  the  Collections  of 
the  New  York  Historical  Society,  occupies  120  octavo 
pages.  It  was  apparently  intended  to  cover,  and  it  does 
cover,  nearly  all  the  transactions  of  the  colony  which,  at  that 
time,  it  was  deemed  necessary  to  regulate  by  positive  law. 
It  deals  with  private  rights  and  public  rights,  as  well  as 
private  wrongs  and  public  wrongs,  and  with  the  constitu- 
tion and  procedure  of  courts  of  justice.  Necessarily  and 
naturally,  in  such  a  code,  published  in  the  English  language, 
there  were  words  and  phrases,  the  definition  and  meaning 
of  which  could  only  be  determined  by  the  customs  and 
common  law  of  England,  which  would  be  the  Law  Diction- 
ary of  the  Code.  One  sample  will  be  a  sufficient  illustra- 
tion. Under  the  head  of  "Actions,"  the  Duke's  Laws 
say: 

"All  actions  of  debts,  accompts,  slanders,  and  actions  of  the  case  eoncern- 
"  ing  debts  and  accompts,  shall  bo  tryed  within  that  jurisdiction  where  the 

"  cause  of  action  dotb  arise." 

By  what  test,  or  standard,  could  a  definition  of  "slan- 
ders"   or   "actions  of  the  case,"    or  "jurisdiction,"  or 


58 


"cause  of  action"  be  determined,  unless  by  reference  to 
the  English  customs  and  common  law.  In  that  sense,  and 
for  that  purpose,  it  may  be  said  that  English  common  law 
was  introduced  into  the  colony  after  the  conquest,  and 
became  the  foundation. 

The  Colony  of  Massachusetts  was  in  every  sense  a  planted 
colony,  and  a  colony  planted  by  Englishmen  ;  but  even  in 
that  colony  it  has  been  recently  decided  by  the  Supreme 
Court  of  the  State  that  the  English  common  law  never  pre- 
vailed to  regulate  the  institution  of  marriage.  In  the  case 
of  Commonwealth  vs.  Munson  (127  Mass.,  459),  the  defend- 
ant, at  a  public  religious  meeting  called  by  himself,  at 
which  no  magistrate  or  clergyman  was  present,  gave  out  a 
text  from  Scripture  and  talked  awhile  about  "  repentance  " ; 
then  a  woman  came  forward  and  read  another  text  from 
Scripture  ;  then  the  two  joined  hands  and  each  promised  to 
take  the  other  in  wedlock  ;  then  the  two  bowed  to  the  as- 
sembly and  the  defendant  offered  a  prayer.  Neither  party 
was  ;i  Friend  or  Quaker  (the  case  of  Quakers  being  excep- 
ted by  the  Massachusetts  statute);  and  the  ceremony  was 
not  comformable  to  the  usage  of  any  religious  sect ;  but  the 
rite  was  apparently  performed  in  good  faith,  and  was  fol- 
lowed by  cohabitation.  The  usual  license  required  by 
statute  had  been  taken  out  of  the  Clerk's  office,  and  after 
the  strange  ceremony  it  was  duly  returned  to  that  office. 
The  Court  held  that  there  had  not  been  a  valid  marriage. 
The  opinion  of  the  Court  was  delivered  by  Chief  Justice 
Gray,  who  now  sits  in  the  Supreme  Court  of  the  United 
States  as  Mr.  Justice  Gray.     He  said  : 

"  In  Massachusetts,  from  very  early  time,  the  requisites  of  avalid  marriage 
"  have  been  regulated  by  the  statutes  of  the  Colony,  Province,  and  Common- 
"  wealth;  the  Canon  law  was  never  adopted;  and  it  was  never  received  here 
"  as  common  law  that  parties  could,  by  their  own  contract,  without  the  pres- 
"  encc  of  an  officiating  clergyman  or  magistrate,  take  each  other  as  husband 
"  and  wife  and  so  marry  themselves.  *  *  *  The  Province  laws  on  this 
"  subject  remained  in  force  until  after  our  Revolution." 

What  the  Massachusetts  Court  said  of  the  Massachusetts 
colony  is,  in  my  opinion,  true  of  the  Province  and  Colony 


50 


of  New  York,  which  is,  thai  the  requisites  of  a  valid  mar- 
riage  were  in  New  York  regulated  by  the  statutes  of  the 
province  or  colony  ;  and  it  was  never  received  in  New 
York,  nj)  to  1772,  that  concensnal  marriages  were  valid, 
even  if  (which  is  doubted)  such  marriages,  without  the 
interposition  of  an  officer,  either  civil  or  ecclesiastical,  com- 
plying strictly  with  the  conditions  and  prerequisites  pre- 
scribed by  the  law  giving-  validity  to  the  acts  of  such  offi- 
cer, were  ever  valid  in  England  by  the  common  law  of 
England. 

I  have  not  seen  nor  heard  of  a  denial  that  the  Colonial 
Marriage  Law  of  1684  was  a  valid  enactment  at  the  date  of 
its  enactment.  In  so  far  as  it  covered  matters  and  also 
punishments  embraced  in  any  previous  statute,  or 
ruled  by  the  common  law,  and  was  inconsistent  there- 
with, it  repeated  or  abrogated  both  by  implication. 
Any  contract  of  marriage,  or  any  other  contract,  in 
palpable  violation  of  its  requirements,  would  be  void  so 
long  as  the  law  was  in  force.  The  same  was  true  of 
the  Duke's  Laws  of  1664  concerning  marriage,  and  their 
amendments,  and  if  it  could  be  found  that  the  Marriage 
Law  of  1084  was  repealed  prior  to  1828,  then,  in  the  absence 
of  any  positive  law  to  the  contrary,  the  Duke's  Laws  would 
by  implication  be  revived. 

Second  Question. 

Whether,  in  1772,  a  non-observance  of  the  requirements 
of  Dongan's  Act  entailed  a  nullity  of  the  ceremony  of  mar- 
riage '. 

Among  the  things  specifically  prescribed  in  the  Dongan 
Marriage  Act  of  1664,  are  the  following  : 

First. — Any  minister  of  religion,  or  justice  of  the  peace, 
within  the  Province,  can  join  persons  together  in  matri- 
mony, provided,  and  not  otherwise  : 

(a.)  They  bring  a  certificate  from  under  the  minis- 
ter's ha  ml  that  published  them,  that  the  names  and 


60 


surnames  of  each  have  been  publicly  read  in  the  Parish 
Church,  or  usual  meeting  place  where  they  both  then 
inhabit,  three  several  Lord's  days  together,  as  intend- 
ing marriage  ;  or 

(b.)  Where  no  Church,  or  public  meeting  place,  shall 
happen  to  be,  a  certificate,  under  the  constable's  hand 
on  whose  doors  their  names  were  affixed,  of  a  publica- 
tion in  writing  that  has  been  affixed  14  days  before 
marriage  on  the  door  of  the  constable  of  each  parish 
where  the  parties  inhabit ;  or 

(c.)  They  bring,  or  produce,  a  license,  under  the  hand 
and  seal  of  the  Governor  ;  and 

(d.)  The  parties  purge  themselves  by  oath,  if  required, 
before  the  justice  of  the  peace  or  the  minister,  (who 
have  by  the  law  power  to  administer  the  same)  that 
they  are  not  under  the  bonds  of  matrimony  to  any 
other  person  living. 

Second. — Those  certificates,  thus  brought  and  produced, 
shall  be  sent  to  the  office  of  the  Register  of  the  County,  and 
there  entered  on  record,  together  with  a  certificate  of  their 
marriage,  with  the  day  and  date  thereof  made  by  the  party 
by  whom  they  were  married,  there  to  remain  in  perpetuam 
rei  memoriam;  for  entering  a  record  of  which  said  clerk  or 
register  shall  be  paid  by  the  parties  married  for  each  one 
shilling. 

When  1 1n-  foregoing  conditions  have  been  complied  with, 
il  and  not  otherwise,"  it  shall  be  lawful  for  any  minister  or 
justice  of  tlir  peace  to  join  the  parties  together  in  matri- 
mony. The  clear  implication  surely  is  that  any  other  mar- 
riage, solemnized  in  any  other  way.  would  be  unlawful. 

The  Statute  of  1604  begins  by  declaring  that,  by  the  law 
of  England,  do  marriage  is  lawfully  consummated  excepting 
by  certain  formalities  which  "cannot  be  duly  practised  in 
these  parts;"  and  therefore,  to  the  end  that  "  a  decent  rule  " 
mav  be  observed  in  respect  to  marriage  in  the  Colony  of 


61 


New  York,  the  Statute  of  1(584  is  enacted  by  the  General 
Assembly.     It  then  goes  on  to  declare  that  if  either  or  both 

of  the  paities  "are  perjured,  and  thereby  obtain  another 
marriage  for  the  said  perjury,"  in  making  oath  that  "they 

arc  not  under  the  bonds  of  matrimony  to  any  other  person 
living,"  then  the  party  or  parties  so  offending  shall  suffer 
"  as  in  cases  of  perjury,  and  further  be  proceeded  against 
as  in  cases  oi polygamy." 

This  provision  respecting  "bonds  of  matrimony" 
appears  to  have  had  relation  to  the  English  rule  governing 
espousals,  or  "pre-contracts  of  marriage,"  which,  up  to 
1541,  made  a  marriage  invalid  in  England  if  in  disregard 
and  violation  of  snch  a  previous  contract.  Whether  that 
system  of  pre-contract  was  in  existence  after  1753,  and 
at  the  time  of  the  publication  of  his  Commentaries,  Black- 
stone  leaves  "  to  be  considered  by  the  canonists."  The 
Statute  of  1684,  however,  seems,  in  one  sense,  to  treat 
such  a  pre-contract  in  the  light  of  an  actual  marriage, 
inasmuch  as  it  denounces  in  that  regard  a  subsequent 
actual  marriage  as  a  committal  of  the  crime  of  polygamy, 
which  is  the  having  of  more  husbands  or  wives  than  one. 
In  the  State  of  New  York,  at  present,  a  polygamous 
marriage  is  void,  even  as  to  the  innocent  party,  and  no 
divorce  is  necessary,  and  such,  Blackstone  says,  was,  in 
1756,  the  English  law. 

This  statute  of  1684  further  enacts : 

"  That  if  any  man  shall  presume  to  marry  contrary  to  this  law  prescribed, 
"  the  person  offending  shall  lie  proceeded  against  as  for  fwnicatum." 

It  seems  to  me  that,  under  this  enactment  of  1684,  a  mar- 
riage is  constituted  by  the  concurrence  of  two  elements— 
the  consent  of  the  parties  and  the  action  of  public  authority, 
and  not  by  either  alone.  The  public  authority,  which  may 
be  either  a  clergymen  or  a  justice  of  the  peace,  must  hist 
ascertain,  verify  and  declare,  that  certain  prescribed  and 
specified  things  have  been  done  by  those  seeking  to  be 
married,  and  by  other  persons,  before  there  can  be  a 
The  reality  of  the  matrimonial  consents,  must 


62 


be  tested,  constituted  and  proclaimed  by  the  colonial 
authority  in  a  prescribed  manner.  Such  interposition  of 
public  authority  cannot  be  dispensed  with. 

It  is  true,  however,  that  this  law  of  1684  does  not  ex- 
pressly declare  that  if  two  persons  are  joined  together  in 
matrimony  without  a  compliance  with  each  and  all  of  the 
foregoing  requisites,  the  marriage  "shall  be  null  and  void  ;" 
but  did  not  the  law  makers  intend,  nevertheless,  that  the 
pre-requisites  of  jniblication  of  banns  in  a  church,  or  of 
written  notice  on  the  constable's  door,  or  of  a  license  and  a 
}Hirging  oath,  if  the  oath  be  required,  should  be  mandatory 
on  the  parties,  and  on  the  officiating  priest  or  minister  i 
Or  did  the  law-makers  intend,  on  the  contrary,  that  those 
pre-requisites  should  be  considered  as  simply  directory, 
and  not  absolutely  essential  to  be  followed,  and  that 
parties  could  be  lawfully  married  without  any  regard  what- 
ever to  the  statute?  I  have  not  seen  a  judicial  decision 
of  that  question,  or  of  the  other  question — whether  or 
not  a  marriage  in  which  all  the  prescribed  conditions 
precedent  were  not  complied  with  would  be  null  and 
void,  and  I  have  no  other  means  of  forming  an  opin- 
ion in  respect  to  what  the  judicial  tribunals  of  the 
Colony  of  New  York  would  have  said  or  done  if  the  ques- 
tion had  been  presented  to  them  in  1772,  than  by  consider- 
ing what,  in  my  own  appreciation,  should  and  therefore 
would  have  been  the  decision  in  1772  of  the  final  Court  of 
Appeal.  In  177:2,  there  were  in  the  Colony  of  New  York 
courts  of  common  law,  of  which  the  chief  Court  was  the 
Supreme  Court,  the  decisions  of  which  could,  in  certain 
cases,  be  reviewed  by  the  Governor  and  Council,  and  in  cer- 
tain other  cases  an  appeal  lay  to  his  Majesty  in  Privy 
Council.  There  was  also  an  inferior  Court  of  Common 
Pleas,  whose  errors  could  be  corrected  by  the  Supreme 
Conrt.  The  Judges  were  appointed,  and  held  office  during 
the  Kings  will  and  pleasure.  There  were  also  courts  of 
criminal  jurisdiction  corresponding  to  those  in  England. 
There  was  also  a  Court  of  Chancery,  in  which  the  Governor 
sate  as  Chancellor,  and  a  prerogative  court,  in  which  the 


68 


Governor  was  properly  the  Judge,  but  in  which  he  usually 
acted  bya  delegate.   Therefore,  the  question  resolves  itself 

in  its  last  analysis  into  an  inquiry  what  interpretation  on 
the  point  inquired  of,  the  King  in  Council,  would  have 
given  to  this  act  in  1772. 

Of  course,  the  circumstances  of  the  time,  the  opinions  of 
the  day  in  respect  to  marriage,  and  the  evils  to  be  remedied 
by  the  statutes  of  1(564  and  1084,  are  to  betaken  into  consid- 
eration. Obviously  enough,  the  object  of  the  law  was  to 
prevent  clandestine  wedlock.  Lord  Hardwick's  Marriage 
Act  of  26  Oeorge  II.,  had  come  to  be  a  law  nineteen  years 
before  177*2,  under  the  influence  of  the  flagrant  evils  arising 
from  Fleet  wedlock  and  the  habitual  practices  of  Fleet  clergy- 
men. That  law  had  declared  that  all  marriages,  solemn 
ized  from  and  after  March  25,  1754.  in  any  other  than  a 
specified  place,  unless  after  publication  of  banns,  or  special 
license,  "shall  be  null  and  void  to  all  intents  and  purposes 
whatsoever."  In  or  about  the  year  1772,  unavailing  efforts 
were  made  in  England  to  repeal  that  legislation. 

I  am  aware  of  the  modern  rule,  to  the  effect  that  a  mar- 
riage, good  at  the  common  law,  is  good  notwithstanding  the 
existence  of  a  statute  on  the  subject,  which  has  been 
disregarded,  unless  the  statute  contains  apt  expressions  of 
nullity.  The  same  rule  is  sometimes  stated  in  another 
form,  and  to  the  effect  that  when  a  statute  requires  a  partic- 
ular form  of  marriage,  the  not  doing  of  the  things  required 
by  the  statute  does  not  make  the  marriage  void,  unless  the 
statute  so  declares  by  appropriate  language.  The  Supreme 
Court  of  the  United  States  has  recently  said,  in  the  case  of 
Meister  v.  Moore  (96  U.  S.,  76),  that : 

"A  marriage  valid  at  common  law  is  valid  notwithstanding  tlie  statutes  of 
"  the  State  in  which  it  was  contracted  or  solemnized  prescribe  directions  and 
"rules  which  have  not  been  followed  in  its  formation  or  solemnization,  unless 
"  the  statutes  of  the  State  contain  express  words  of  nullity." 

Was  such  a  rule  enforced  in  1772  by  the  judicial  tribunals 
of  the  Colony  of  New  York  or  of  England  \  When  did  the 
Courts  first  begin  to  say  that  the  general  rule  that  when  a 
statute  directed  a  thing  to  be  done  in  a  particular  way,  the 


64 


thing  would  be  void  if  done  in  any  other  way,  did  not  apply 
to  marriage  \  How  much  fluctuation  of  opinion  there  has 
been  in  the  United  States  on  the  subject  of  marriage  maybe 
inferred  from  the  fact  that  in  1843  the  Supreme  Court  of  the 
United  States,  in  Lessee  of  Jewell  vs.  Jewell  (1  Howard,  219), 
was  equally  divided  in  opinion  on  the  question  whether,  ( 
under  the  laws  of  Georgia  or  of  South  Carolina,  a  valid, 
legal  marriage  can  be  made  by  an  agreement  of  the  parties, 
in  the  presence  of  friends,  to  marry  before  any  sexual  in- 
tercourse between  them,  and  followed  by  cohabitation. 
Thirty -four  years  afterwards  the  same  Court,  in  Meister  vs. 
Moore  (96  I1.  S.  Rep.,  76),  while  not  declaring  distinctly 
that  a  consensual  marriage  without  the  intervention  of  a 
priest  or  judicial  officer  was  valid  at  common  law,  did  unani- 
mously say  that  a  marriage  valid  at  common  law  is,  in 
Michigan,  valid  notwithstanding  the  statutes  of  the  State 
where  it  is  contracted,  prescribed  directions  respecting 
its  confirmation  and  solemnization  which  have  not  been  fol- 
lowed, unless  the  statutes  contain  express  words  of  nullity. 
In  the  beginning  of  the  present  century  there  was  to  be 
detected,  I  think,  at  the  bar  and  on  the  bench,  in  the  sev- 
eral States  of  the  United  States,  the  beginning  of  a  conflict 
of  opinion  and  policy  in  respect  to  marriage,  not  un- 
like, even  if  very  different  in  manifestation,  that  which 
existed  in  England  in  the  second  quarter  of  the  last  cen- 
tury on  the  same  subject.  Lord  Hardwick's  Marriage  Act 
became  English  law  in  1753 ;  and  in  1765,  1772  (the  very 
year  of  the  transaction  in  New  York  now  under  considera- 
tion) and  in  1781,  there  appears  to  have  been  futile  attempts 
made  in  Parliament  to  undo  Lord  Hardwick's  work.  In 
1809,  a  ease  came  before  the  Supreme  Court  of  the  State  of 
New  York,  of  which  Mr.  Kent,  the  illustrious  author  of 
the  Commentaries  subsequently  published,  was  then  the 
Chief  Justice.  The  case  is  entitled  Fenton  vs.  Reed  (4 
Johns.  R.,  51).  The  opinion  is  "Per Curiam"  the  Court 
at  that  time  consisting  of  five  Judges.  It  is  sufficient  to 
quote  the  language  used  by  the  Court  without  a  recital  of 
the  facts : 


65 


"  It  is  stated,"  say  the  Court,  "  that  tbere  is  nol  proof  of  anj  subsequent 
'•  marriage  in  fact,  and  that  no  solemnization  of  marriage  was  abown  to  have 
"  taken  place.  But  proof  of  an  actual  marriage  was  not  necessary.  Such 
"  strict  proof  is  only  required  in  prosecutions  for  bigamy,  and  Inactions  for 
"  criminal  conversation.  A  marriage  may  be  proved  in  other  cases  from  oo 
"  habitation,  reputation,  acknowledgment  of  tin-  parties,  reception  in  the 
"family,  and  other  circumstances  from  which  a  marriage  may  lie  inferred. 
"  No  formal  solemnization  of  marriage  was  requisite.  A  contract  of  marriage 
"  made  per  r,  rba  dt  praaenti  amounts  to  an  actual  marriage,  and  is  as  valid  as 
•'  if  made  inibcA  ecclema.  In  the  present  case  there  existed  strong  circum- 
"  stances  from  which  a  marriage  subsequent  to  the  death  of  Quest  might  be 

"  presumed." 

It  will  be  seen  that  the  general  doctrine  therein  sanctioned 
goes  lo  the  full  length  of  the  doctrine  of  consensttal  marriage 
without  the  intervention  of  any  other  persons,  or  of  any 
religions  or  other  civil  officer. 

During  the  next  year,  1810,  another  case  entitled  Milford 
vs.  Worcester  (7  Mass.  Rep.,  48)  came  before  the  Supreme 
Judicial  Court  of  Massachusetts,  of  which  Theophilns  Par- 
sons was  ( 'hief  .1  nstice.  The  question  was  over  the  town  in 
which  a  pauper  had  a  legal  settlement.  The  Trial  Judge 
left  it  to  the  jury  to  decide  whether  or  not  the  alleged  pro- 
ceeding of  marriage  had  the  sanction  of  a  justice  or  magis 
trate,  and  the  jury  found  specially  that  it  had  not.  And 
the  case  finally  turned  before  the  full  court  upon  the  in- 
quiry whether  the  mutual  neknowledgment  of  the  parties 
made  at  a  tavern  was.  under  the  circumstances,  and  by  the 
Massachusetts  Statute,  a  lawful  marriage.  That  statute 
declared  that  no  person  other  than  a  Justice  of  the  Peace, 
or  ordained  minister,  should  join  any  persons  in  marriage  ; 
nor  without  a  certificate  of  publishment;  but  the  only 
penalty  for  disobedience  of  the  statute  appears  to  have  been 
the  forfeiting  of  fifty  pounds  to  the  county.  The  opinion 
of  the  Court  was  delivered  by  Chief  Justice  Parsons,  and 
in  the  course  of  it  he  said  that  unless  the  parties  make  the 
mutual  acknowledgment  in  the  presence  of  a  justice  of  the 
peace  or  minister,  with  his  assent,  and  he  undertaking  to 
act  on  that  occasion  in  his  official  character,  ';  the  marriage, 
"  I  am  well  satisfied,  will  not  be  solemnized  pursuant  to, 
"  nor  be  a  lawful  marriage  within  the  statute."  The  Chief 
Justice  adds : 


66 


"But  it  has  been  argued  that  this  marriage,  although  not  solemnized  pur- 
'•  Buant  to  the  statute,  is  yet  a  lawful  marriage  had  between  parties  competent 
"  to  contract  marriage  and  not  declared  void  by  any  statute.  This  ground  for 
"  supporting  the  marriage  deserves  consideration,  as,  if  it  he  tenable,  the  con- 
"  sequences  are  very  extensive.  *  *  *  It  has  been  truly  observed  by  the 
"  Counsel  for  the  plaintiffs  that  a  marriage  acknowledgment  of  this  kind  is 
"  not  declared  void  by  any  statute.  But  we  cannot  thence  conclude  that  it  is 
"  recognized  as  valid  unless  we  render,  in  a  great  -measure,  nugatory  all  the 
"statute  regulations  on  this  subject  *  *  *  Whether  cohabitation  after 
"  such  a  pretended  marriage  will  subject  cither  of  the  parties  to  punishment 
"  as  guilty  of  fornication  may  depend  on  circumstances.  If  either  of  the 
"  parties  were  circumvented,  and  verily  supposed  the  marriage  legal,  perhaps 
"  such  party  would  be  protected  from  punishment;  on  the  general  principle 
"  that  to  constitute  guilt  the  mind  must  appear  to  be  guilty.  But  every  young 
"  woman  of  honor  ought  to  insist  on  a  marriage  solemnized  by  a  legal  officer 
"  and  to  shame  the  man  who  prates  about  marriage  condemned  by  human  laws 
"  as  good  in  the  Bight  of  heaven.  This  cant  she  may  be  assured  is  a  pretext 
'•  for  seduction,  and  il  not  contemned  will  lead  to  dishonor  and  misery.  Upon 
1  the  whole  it  is  the  opinion  of  the  Court  that  the  mutual  acknowledgement 
"  of  the  parties  in  this  case  to  take  each  other  for  husband  and  wife  in  the 
"  room  where  a  Justice  was  present,  he  not  assenting  but  refusing  to  solemnize 
"  the  marriage,  is  not  a  lawful  marriage." 

The  difference  in  theory  between  these  two  eminent 
tribunals  on  the  subject  of  marriage  is  here  very  apparent. 

In  the  year  L826,  or  thereabouts,  Mr.  Kent  published  the 
first    edition    of    his  Commentaries,   which    immediately 

became  a uthority  among  members  of  the  American  bench 
and  bar.     In  each  of  the  first  three  editions  there  was  (Vol. 
2,  p.  82)  this  sentence  relating  to  the  marriage  contract  : 
"  If  the  contract  be  made  per  verba  dt  /in/tint/,  and  remains  without  eohab- 

"  i  tat  ion,  or  if  made  per  verba  dt  fnt>ir<>.  and  be  followed  by  consummation. 
"  it  amounts  I"  a  valid  marriage,  and  which  the  parties,  being  competent  as  to 
"  age  and  consent,  cannot   dissolve,  it    is  equally  binding  as  if  made  in  fur  e 

"  ( crh  siii ." 

In  the  year  1843,  the  case  of  Jewell  vs.  Jewell  came  before 
the  Supreme  Court  of  the  United  States  by  writ  of  error 
from  the  Circuit  Court  of  South  Carolina  (1  Howard's  U. 
S.  Rep.,  219).  Chief  Justice  Taney  delivered  the  opinion 
of  the  Court.  One  of  the  questions  in  the  case  related  to 
the  validity  of  a  marriage.  On  the  trial  the  plaintiffs 
prayed  the  Court  to  instruct  the  jury  as  follows  : 

"  3.  That  if  the  jury  do  not  believe  that  Benjamin  Jewell  and  Sophie  Pre- 
"  vost  were  married  by  a   magistrate  in    Savannah   in  the  year  1796,  or  before 


I '.7 


"  that  time,  then  there  ia  u<>  evidence  of  a  marriage  before  them  on  which 
••  they  can  liml  the  defendants  lo  be  the  legitimate  heirs  of  Benjamin  Jewell. 
••i).  That  a  promise  to  marry  at  a  future  time,  followed  by  cohabitation, 
"  does  not  constitute  marriage,  though  the  promise  be  accepted  at   the  time 
••  when  ii  was  made.'' 

The  defendanl  prayed  the  Court  to  instinct  the  jury  : 

"  That  it'  the  jury  believe  that  before  any  sexual  connection  between 
"  Sophie  Prevost  and  Benjumin  Jewell,  they,  in  the  presence  of  her  family, 
"  ami  his  friends,  agreed  to  marry,  and  did  afterwards  live  together  aa  man 

"  and  wife,  the  tie  was  indissoluble  even  by  mutual  consent." 

Thereupon  the  Court  gave  substantially  the  instructions 
requested  by  the  defendant,  but  refused  the  third  instruc- 
tion asked  by  the  plaintiff.  Upon  the  sixth,  asked  by  the 
plaintiff,  the  Court  below  directed  the  jury  in  the  language 
of  the  sentence  which  I  have  just  quoted  from  Kent's  Com- 
mentaries. The  Chief  Justice  of  the  Supreme  Court  of  the 
United  States  said  : 

"  Upon  the  point  thus  decided  "  (the  correctness  of  the  sentence  in  Kent's 
Commentaries)  "  this  Court  is  equally  divided,  and  no  opiniou  can  therefore 
•'  be  given." 

After  the  opinion  of  that  Court  had  been  published,  Mr. 
Kent  added,  in  the  next  and  subsequent  editions  of  his 
Commentaries,  the  words  in  the  sentence  which  I  italicize 
and  put  in  brackets  below  : 

"If  the  contract  be  made  per  verba  <h  prcBsenti  and  remain  without  cohab- 
"  itation,  or  if  made  per  verba  <lt  future,  and  be  follwed  by  consummation,  it 
"  amounts  to  a  valid  marriage  [mi  the  <ihxcnce  <>f  <ili  civil  regulations  to  the  con- 
"  trary],  and  which  the  parties,  being  competent  as  to  age  and  consent,  can- 
"  not  dissolve,  and  it  is  equally  binding,  as  if  made  in  fode  eecUsia. " 

It  will  be  seen  that  the  Supreme  Court  of  the  United 
States  did  not  divide,  and  could  not  well  have  divided, 
over  the  sentence  as  just  now  exhibited,  and  as  contained 
in  all  of  the  editions  of  Kent's  Commentaries  subsequent 
to  the  4th  edition.  The  division  of  the  Court  was  upon  the 
question  whether  such  a  contract  of  marriage  would  be 
valid,  without  reference  to  the  presence  or  absence  of  muni- 
cipal regulations.  Those  words — "  The  absence  of  all  civil 
"  regulations  to  the  contrary"  are  extremely  material, 
inasmuch  as  it  is  difficult  to  find  a  civilized  land  in  which 
there  is  an  entire  absence  of  such  regulations. 


68 


But,  meanwhile,  the  difference  of  opinion  disclosed  in 
1809  and  1810,  between  two  such  illustrious  men  as  Chief- 
Justice  Parsons,  of  Massachusetts,  and  Chief-Justice  Kent, 
of  New  York,  on  the  legal  nature  of  the  marriage  tie,  grew 
wider  and  wider,  and  the  declaration  of  Chancellor  Kent  in 
the  first  four  editions  of  his  Commentaries,  and  up  to  1851, 
tended  greatly  to  further  widen  the  breach. 

But  the  marriage  with  which  we  are  now  concerned  was 
in  1772,  and  is  to  be  considered  by  the  judicial  opinion  of 
1(584  and  1772.  My  allusions  to  judicial  opinions  in  the 
United  States  during  the  present  century  have  been  by  way 
of  caution  that  such  modern  opinions,  and  especially  those 
of  1885,  cannot  be  relied  upon  as  a  safe  test  of  judicial 
opinion  on  the  same  question  two  hundred  or  even  one 
hundred  years  ago,  when  possibly  there  was  no  tendency, 
on  the  part  of  judicial  or  executive  officers,  to  treat  statutes 
to  prevent  clandestine  marriages  as  enactments  to  be  disre- 
garded, and  evaded,  or  to  use  presumptions  in  the  ascer- 
tainment of  legal  truth  about  a  marriage  for  any  other 
purpose  than  to  lead  up  to,  and  establish,  a  marriage  con- 
stituted as  the  statute  commanded. 

All  the  American  authorities  are,  however,  agreed,  I 
think,  in  the  principle  that  if  the  alleged  marriage  in  1772, 
now  under  consideration,  was  not  valid  at  common  law,  it 
could  not  have  any  validity  whatever  unless  all  the  require- 
ments of  the  statute  weir  complied  with.  But,  apart  from 
all  that,  and  apart  from  the  uncertainty  whether  any  such 
rule  of  statute  interpretation  was  in  force  in  1084,  or  1772,  I 
am  of  the  opinion  that  the  Dongan  Act  does  denounce  as 
illegal  and  void  any  marriage  attempted  in  disregard,  or 
in  violation  of  the  prerequisites  specified  therein.  I 
do  not  think  that  any  other  interpretation  can  be  fairly 
!j;hvn  to  the  declaration  in  the  act  "that  if  any  man  shall 
"  presume  to  marry  contrary  to  this  law  prescribed,  the 
11  person  offending  shall  be  proceeded  against  as  for  forni- 
"  cation."  The  Duke's  Laws  declare  that,  "if  any  person 
"  commit  fornication  with  any  single  woman  they  shall 
"  both  be  punished  by  enjoining  marriage,  fine  or  corporal 


69 


"  punishment,  or  any  of  those  according  to  the  discretion 
"of  the  Court."  It  is  to  be  inferred  that  the  fornication 
referred  to  in  these  two  laws  of  L664  and  L684,  could 
only  be  affirmed  between  an  unmarried  man  and  an 
unmarried  woman.  It  is  also  to  be  inferred  that,  by 
both  of  these  laws,  the  offence  of  fornication  is  made  an 
indictable  offence.  And,  that  a  complaint  or  indictment 
for  fornication  must  then  have  set  forth  that  the  two  per- 
sons did  commit  the  crime  of  fornication  by  then  and  there 
having  carnal  knowledge  of  the  bodies  of  each  other,  the 
one  being  then  and  there  a  single  and  unmarried  man,  and 
the  other  being  then  and  there  a  single  and  unmarried 
woman,  the  said  two  parsons  not  being  then  and  there 
lawfully  married  to  each  other.  It  is  also  to  be  inferred 
that  the  Duke's  Laws  of  1664,  which  prescribed  that  if  any 
man  shall  many  contrary  thereto,  "  the  children  so  begot- 
ten shall  be  reputed  bastards."  is  to  be  read  in  pari 
materia  with  the  law  of  1684,  which  declared  that  "  the  per- 
son offending  shall  be  proceeded  against  as  for  fornication," 
since  the  latter  law  did  not  either  expressly  or  by  implica- 
tion repeal  that  part  of  the  former  law,  and  the  denuncia- 
tion of  the  latter  that  the  children  shall  be  bastards  remained 
in  force  in  the  Colony  of  New  York  in  1772,  and  so  for  that 
reason  the  law  of  that  date  in  effect  declared  any  marriage 
void  if  attempted  in  violation  of  any  of  its  requisites. 

It  is  true  that  the  law  of  1684  did  not,  like  Lord  Hard- 
wick's  Act  of  1754,  declare  all  marriages  solemized  in  dis- 
regard of  its  requirements  "null  and  void  to  all  intents 
and  purposes  whatsoever."  But  I  think  we  should  bear  in 
mind  the  respective  dates  of  the  two  laws,  and  the  circum- 
stances under  which  each  was  enacted.  The  Barebones 
Parliament  of  1653  had  declared  in  effect  that  a  ceremony 
before  a  civil  magistrate  was  requisite  for  the  validity  of  a 
marriage  ;  but  the  Parliament  of  1656,  when  it  confirmed 
the  marriage  law  of  the  Barebones  Assembly,  excepted 
from  confirmation  the  clause  "that  no  other  marriage 
whatsoever  withiu  the  Commonwealth  of  England  shall  be 
held  or  accounted  a  legal  marriage."  On  the  restoration 
of  Charles  II.,    the  Parliamentary    mode  of  celebrating 


70 

marriage  was  abandoned  ;  and  some  twenty  years  and  more 
after  that  the  marriage  law  of  1684  was  enacted  in  the 
Colony  of  New  York.  But  not  till  some  three-quarters  of 
a  century  later  was  Lord  Hard  wick's  Act  adopted,  which 
used  the  phrase  "  null  and  void."  I  am  not  unmindful  of 
the  ancient  maxim  that  statutes  in  derogation  of  common 
law  rights  are  to  be  strictly  construed,  which  maxim  seems 
to  have  grown  out  of  the  saying  of  Lord  Coke  that  "the 
wisdom  of  the  judges  and  sages  of  the  law  have  always 
suppressed  new  and  subtle  inventions  in  derogation  of  the 
common  law";  but  perhaps  modern  law  has  since  de- 
vised a  better  rule,  which  was  in  force  in  the  Colony  of 
New  York  in  1772,  which  was  that  all  statutes  are  to  be 
interpreted  and  applied  as  the  law-makers  intended,  and 
therefore  the  saving  of  Lord  Coke  never  had  a  solid  foun- 
dation in  American  colonial  jurisprudence. 

I  am  also  aware  that  a  usage,  if  sanctioned  for  a  very 
long  time  by  judicial  and  executive  officers,  is  entitled  to 
great  weighl  in  doubtful  cases  ;  but  the  true  rule  was,  I 
think,  expressed  by  the  Chancellor  of  New  York,  when  he 
said,  iu  Bank  of  Utica  vs.  Mersereau  (:5  Barb.  Ch.,  530  : 
"Lord  Coke's  expression  that  common  law  is  good  author- 
"  ity  does  not  apply  to  a  mere  speculative  opinion  in  the 
"  community  as  to  what  the  law  on  a  particular  subject  is." 
Certainly  usage,  while  it  may  be  employed  to  interpret, 
cannot  be  used  to  defeat  statutes.  Lord  Mansfield,  in 
Fin;/,  /•  vs.  Edwards  (Cowper,  112),  said:  >k  Tsage  will 
avail  nothing  if  meant  asan  evasion  of  the  statute."  It  has 
been  repeatedly  said  in  American  Courts,  as  in  Ham  vs. 
Sawyer  (38  Maine,  37),  that  no  prescriptive  rights  can  be 
claimed  against  an  existing  statute. 

For  all  these  reasons  it  is  my  opinion  that,  in  1772,  the 
evidence  necessary  to  establish  the  fact  of  an  actual  mar- 
riage in  the  Colony  of  New  York  was  and  is  that  prescribed 
in  the  law  of  1684.  The  intervention  of  a  clergyman  or  a 
magistrate  is  prescribed  by  that  statute.  And  I  cannot 
think  that  the  requisites  and  conditions  precedent  therein 
specified  could  or  would,  in  1772,  have  been  regarded  as 
merely  recommendatory. 


71 


Third  Question. 

As  the  second  interrogatory  concerned  the  way  in  which 
a  marriage  could  be  constituted  in  the  colony  in  1772,  the 
present  interrogatory  concerns  the  way  in  and  by  which 
the  marrriage  could  be  proved.  My  opinion  is  thai  the 
fact  of  marriage  could  not  be  proved  either  by  facts  <>!'  con- 
sent between  the  parties  and  copulation,  or  of  habit  and 
repute,  occurring  alone  or  in  conjunction,  and  for  the 
reason,  among  other  reasons,  that  mere  consent  did  not,  in 
the  Colony  of  New  York,  constitute  a  marriage  in  1772, 
but  a  consent  and  an  application  thereto  by  the  State  of 
specified  ecclesiastical  or  judicial  acts.  No  possible  acts  of 
the  parties,  prior  or  subsequent  to  the  mutual  consent,  could 
in  the  absence  of  the  prescribed  ecclesiastical  or  judicial 
acts  create  a  marriage.  If  the  alleged  marriage  between 
Richard  Maitland  and  Mary  MacAdam  in  1772,  is  contested, 
the  fact  in  issue  must  be  whether  the  law  of  1684  was 
complied  with  ;  and  there  must  be  direct  proof  of  such 
compliance.  The  certificate  of  the  Mayor  of  New  York 
which  accompanies  the  certificate  of  the  Reverend  Dr.  Ogil- 
vie,  certifies  not  that  he  was  a  minister,  but  only  "one  of  the 
"assistant  ministers  of  the  Reverend  Samuel  A  uch  in  uty. 
"  Rector  of  Trinity  Church  in  the  said  City  of  New  York." 
The  law  of  1684  makes  it  lawful  for  a  "Minister"  to 
join  persons  in  matrimony.  The  certificate  of  the  Rev. 
Dr.  Ogilvie  is  certified  by  the  Mayor  to  have  been  sworn  to 
before  him  on  January  6th,  1773  ;  but  Dr.  Ogilvie  certifies 
that  he  joined  together  in  matrimony  Richard  Maitland  and 
Mary  MacAdam  on  July  11,  1772,  which  was  nearly  six 
months  before  the  certificate  purports  to  have  been  sworn  to 
in  the  presence  of  the  Mayor.  It  is  also  to  be  observed  that 
Dr.  Ogilvie  does  not  certify  that  he  joined  the  two  in  matri- 
mony in  compliance  with  the  provisions  and  requisites  of  the 
Dongan  Act.  or  of  a  colonial  law.  but  "according  to  the 
rites  and  ceremonies  of  the  Church  of  England,  as  by  law 
established.'"  It  is  familiar  law  that  a  declaration  may  be 
deemed  relevant  when  it  was  made  by  the  declarant  in  the 


72 


discharge  of  professional  duty  at  the  time  when  the  matter 
stated  occurred,  and  of  his  own  knowledge;  but  that  such 
declarations  are  deemed  to  be  irrelevant  except  so  far  as  they 
relate  to  the  matter  which  the  declarant  stated  in  the  ordi- 
nary course  of  his  business  or  duty.  Was  it  the  business 
or  duty  of  Dr.  Ogilvie  to  make  such  a  certificate  under  the 
law  of  1684  I  On  the  contrary,  that  law  made  it  the  duty  of 
the  minister  to  send  a  certificate  of  marriage  therein  pre 
scribed  "  to  the  office  of  the  Register  of  the  County,"  where 
it  must  be  entered  on  record.  In  the  case  of  Chambers  vs. 
Bernesconi  (1  C.  M.  &  R.,  347)  the  question  was  whether 
A.  was  arrested  at  Paddington  or  in  South  Morton  Street, 
and  a  certificate  annexed  to  the  writ  by  a  deceased  sheriff's 
officer  and  returned  by  him  to  the  sheriff  was  deemed  to  be 
irrelevant  so  far  as  it  related  to  the  place  where  the  arrest 
took  place.  So  in  the  case  of  R.  vs.  Clapham  (4  C.  &  P., 
29),  the  question  was  in  respect  to  the  age  of  A.:  and  a 
statement  made  by  the  incumbent  in  a  register  of  baptism 
that  A.  was  born  on  a  given  day  was  deemed  to  be  irrele- 
vant because  it  was  not  the  incumbent's  duty  to  make  the 
statement. 

I  am  not  aware  of  any  decision  of  any  Court  that  can 
make  the  statement  of  Dr.  Ogilvie  that  he  married  the 
parties  ''according  to  the  rites  and  ceremonies  of  the 
Church  of  Kngland,  as  by  law  established,"  relevant  to  the 
issue  whether  or  not  the  parties  were  married  according  to 
the  requirements  and  provisions  of  the  law  of  1G81  in 
respect  to  banns  or  license.  The  difficulty  with  the  certifi- 
cate of  Dr.  Ogilvie  is  that  it  does  not  touch  and  cover  or 
lead  u])  to  the  facl  in  issue.  In  American  Courts  it  would 
not  be  admissible  in  evidence  to  prove  a  compliance  with 
the  colonial  law  in  existence  in  1772. 

SIDNEY  WEBSTER. 
New  York,  May  26,  1885. 


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